CALIFORNIA LAW REVISION COMMISSIONThis publication (#215) will appear in Volume 33 of the Commis-sion’s Reports, Recommendations, and Studies . Commission publications and other

STATE OF CALIFORNIA

CALIFORNIA LAWREVISION COMMISSION

2002-2003 RECOMMENDATIONS

Common Interest Developments:Organization of Davis-Stirling Common Interest

Development Act ................................. 1

Common Interest Development Law: Procedural Fairness inAssociation Rulemaking and Decisionmaking ............ 81

Exemptions from Enforcement of Money Judgments:Second Decennial Review ........................ 113

Probate Code Technical Corrections .................. 145

Statutes Made Obsolete by Trial Court Restructuring:Part 2 .......................................... 169

March 2003

California Law Revision Commission4000 Middlefield Road, Room D-1

Palo Alto, CA 94303-4739

CALIFORNIA LAW REVISION COMMISSION

COMMISSION MEMBERS

DAVID HUEBNERChairperson

FRANK KAPLAN DESIREE ICAZA KELLOGGVice Chairperson Member

DIANE F. BOYER-VINE BILL MORROWLegislative Counsel Senate Member

JOYCE G. COOK EDMUND L. REGALIAMember Member

ELLEN CORBETT WILLIAM E. WEINBERGERAssembly Member Member

COMMISSION STAFF

Legal

NATHANIEL STERLINGExecutive Secretary

BARBARA S. GAAL BRIAN P. HEBERT LYNNE I. URMANStaff Counsel Staff Counsel Staff Counsel

Administrative-Secretarial

VICTORIA V. MATIASSecretary

NOTEThe Commission’s reports, recommendations, and studies are

published in separate pamphlets that are later bound in hardcoverform. The page numbers in each pamphlet are the same as in thevolume in which the pamphlet is bound, which permits citation toCommission publications before they are bound.

This publication (#215) will appear in Volume 33 of the Commis-sion’s Reports, Recommendations, and Studies.

Commission publications and other materials are available on theInternet at www.clrc.ca.gov.

2003] 1

STATE OF CALIFORNIA


RECOMMENDATION

Organization of Davis-Stirling CommonInterest Development Act

September 2002



2 2002-2003 RECOMMENDATIONS [Vol. 33

NOTEThis report includes an explanatory Comment to each section

of the recommended legislation. The Comments are written asif the legislation were already operative, since their primarypurpose is to explain the law as it will exist to those who willhave occasion to use it after it is operative. The Comments arelegislative history and are entitled to substantial weight inconstruing the statutory provisions. For a discussion of casesaddressing the use of Law Revision Commission materials inascertaining legislative intent, see the Commission’s mostrecent Annual Report.

Cite this report as Organization of Davis-Stirling Common InterestDevelopment Act, 33 Cal. L. Revision Comm’n Reports 1 (2003). Thisis part of publication #215 [2002-2003 Recommendations].

2003] ORGANIZATION OF DAVIS-STIRLING CID ACT 3

STATE OF CALIFORNIA

CALIFORNIA LAW REVISION COMMISSION4000 Middlefield Road, Room D-1Palo Alto, CA 94303-4739650-494-1335

DAVID HUEBNER, ChairpersonFRANK KAPLAN, Vice ChairpersonDIANE F. BOYER-VINEJOYCE G. COOKDESIREE ICAZA KELLOGGSENATOR BILL MORROWEDMUND L. REGALIAJULIA SYLVAASSEMBLY MEMBER HOWARD WAYNEWILLIAM E. WEINBERGER

September 13, 2002

To: The Honorable Gray DavisGovernor of California, andThe Legislature of California

The Law Revision Commission is conducting a general study ofcommon interest development law. In that study, the Commissionwill review the statutes affecting common interest developmentswith the goal of setting a clear, consistent, and unified policy withregard to their formation and management and the transaction ofreal property interests located within them. It will seek to clarifythe law and eliminate unnecessary or obsolete provisions, consoli-date existing statutes in one place in the codes, and determine towhat extent common interest housing developments should be sub-ject to regulation.

In this recommendation, the Commission recommends that de-scriptive chapter and article headings be inserted in the body of theDavis-Stirling Common Interest Development Act. The headingswill aid in the use of this complex body of law and will helpstructure future revisions of the law in a logical manner.

This recommendation was prepared pursuant to ResolutionChapter 78 of the Statutes of 2001.

Respectfully submitted,

David HuebnerChairperson


2003] 5

COMMON INTEREST DEVELOPMENT LAW

BACKGROUND

The main body of law governing common interest devel-opments is the Davis-Stirling Common Interest DevelopmentAct.1 Other key statutes include the Subdivision Map Act, theSubdivided Lands Act, the Local Planning Law, and the Non-profit Mutual Benefit Corporation Law, as well as various en-vironmental and land use statutes. In addition, statutes basedon separate, rather than common, ownership models still con-trol many aspects of the governing law.2 The complexitiesand inconsistencies of this statutory arrangement have beencriticized by homeowners and practitioners, among others.3

Common interest developments are governed by boards oflaypeople, elected from among the unit owners. Faced withthe complexity of common interest development law, many ofthese volunteers make mistakes and violate procedures forconducting hearings, adopting budgets, establishing reserves,enforcing parking, and collecting assessments. Housing con-sumers do not readily understand and cannot easily exercisetheir rights and obligations.

The Law Revision Commission is reviewing the statutesaffecting common interest developments with the goal of set-ting a clear, consistent, and unified policy with regard to theirformation and management and the transfer of real propertyinterests located within them. The objective of the review isto clarify the law and eliminate unnecessary or obsolete pro-

1. Civ. Code § 1350 et seq.

2. See, e.g., Civ. Code §§ 1102 et seq., 2079 et seq. (real estate disclosure).

3. See, e.g., SR 10 (Lee and Sher) (Apr. 10, 1997); California Research Bu-reau, Residential Common Interest Developments: An Overview (Mar. 1998),available at <http://www.library.ca.gov>.


visions, to consolidate existing statutes in one place in thecodes, and to determine to what extent common interesthousing developments should be subject to regulation.

PROPOSED LAW

As a first step, the Commission recommends that a generalorganizational structure be added to the Davis-Stirling Act.This would be done simply by adding descriptive chapter andarticle headings to the statute without touching the body ofthe statute. No renumbering or rearranging of sections wouldbe required.

The Commission also recommends that a constructionalprovision be added to make clear that the new headings donot affect the interpretation or meaning of the statute.

An organizational structure for the Davis-Stirling Act willassist interested persons in finding their way through the law.It will also facilitate future development of the law in a logi-cal manner.


Contents

TITLE 6. COMMON INTEREST DEVELOPMENTS ............... 9CHAPTER 1. GENERAL PROVISIONS ........................ 9Article 1. Preliminary Provisions............................ 9

§ 1350.5 (added). Effect of headings........................ 9Article 2. Definitions ................................... 9CHAPTER 2. GOVERNING DOCUMENTS..................... 13Article 1. Creation .................................... 13Article 2. Enforcement ................................. 15Article 3. Amendment.................................. 18CHAPTER 3. OWNERSHIP RIGHTS AND INTERESTS ............. 23CHAPTER 4. GOVERNANCE ............................. 27Article 1. Association .................................. 27Article 2. Common Interest Development Open Meeting Act ........ 29Article 3. Managing Agents .............................. 31Article 4. Public Information ............................. 34CHAPTER 5. OPERATIONS .............................. 36Article 1. Common Areas ............................... 36Article 2. Fiscal Matters ................................ 38Article 3. Insurance ................................... 46Article 4. Assessments ................................. 48CHAPTER 6. TRANSFER OF OWNERSHIP INTERESTS ............ 57CHAPTER 7. CIVIL ACTIONS AND LIENS .................... 60CHAPTER 8. CONSTRUCTION OF INSTRUMENTS AND ZONING ..... 61CHAPTER 9. CONSTRUCTION DEFECT LITIGATION............. 62CHAPTER 10. IMPROVEMENTS ........................... 79

____________________



PROPOSED LEGISLATION

� Note. The following chapter and article headings, along with proposed CivilCode Section 1350.5 on the effect of headings, are proposed to be added to theDavis-Stirling Common Interest Development Act. The sections comprising theAct are also set out, unchanged, for reference.

T I T L E 6 . C OM M ON I NT E R E S TDE VE L OP M E NT S

CHAPTER 1. GENERAL PROVISIONS

Article 1. Preliminary Provisions

1350. This title shall be known and may be cited as the Davis-Stirling Common Interest Development Act.

Civ. Code § 1350.5 (added). Effect of headings

SEC. ___. Section 1350.5 is added to the Civil Code, toread:

1350.5. Division, part, title, chapter, article, and sectionheadings do not in any manner affect the scope, meaning, orintent of this title.

Comment. Section 1350.5 is a standard provision found in manycodes. See, e.g., Evid. Code § 5; Fam. Code § 5; Prob. Code § 4.

Article 2. Definitions

1351. As used in this title, the following terms have thefollowing meanings:

(a) “Association” means a nonprofit corporation orunincorporated association created for the purpose of managing acommon interest development.

(b) “Common area” means the entire common interestdevelopment except the separate interests therein. The estate in thecommon area may be a fee, a life estate, an estate for years, or anycombination of the foregoing. However, the common area for aplanned development specified in paragraph (2) of subdivision (k)


may consist of mutual or reciprocal easement rights appurtenant tothe separate interests.

(c) “Common interest development” means any of the following:(1) A community apartment project.(2) A condominium project.(3) A planned development.(4) A stock cooperative.(d) “Community apartment project” means a development in

which an undivided interest in land is coupled with the right ofexclusive occupancy of any apartment located thereon.

(e) “Condominium plan” means a plan consisting of (1) adescription or survey map of a condominium project, which shallrefer to or show monumentation on the ground, (2) a three-dimensional description of a condominium project, one or moredimensions of which may extend for an indefinite distanceupwards or downwards, in sufficient detail to identify the commonareas and each separate interest, and (3) a certificate consenting tothe recordation of the condominium plan pursuant to this titlesigned and acknowledged by the following:

(A) The record owner of fee title to that property included in thecondominium project.

(B) In the case of a condominium project which will terminateupon the termination of an estate for years, the certificate shall besigned and acknowledged by all lessors and lessees of the estate foryears.

(C) In the case of a condominium project subject to a life estate,the certificate shall be signed and acknowledged by all life tenantsand remainder interests.

(D) The certificate shall also be signed and acknowledged byeither the trustee or the beneficiary of each recorded deed of trust,and the mortgagee of each recorded mortgage encumbering theproperty.

Owners of mineral rights, easements, rights-of-way, and othernonpossessory interests do not need to sign the condominium plan.Further, in the event a conversion to condominiums of acommunity apartment project or stock cooperative has beenapproved by the required number of owners, trustees, beneficiaries,and mortgagees pursuant to Section 66452.10 of the GovernmentCode, the certificate need only be signed by those owners, trustees,beneficiaries, and mortgagees approving the conversion.


A condominium plan may be amended or revoked by asubsequently acknowledged recorded instrument executed by allthe persons whose signatures would be required pursuant to thissubdivision.

(f) A “condominium project” means a development consisting ofcondominiums. A condominium consists of an undivided interestin common in a portion of real property coupled with a separateinterest in space called a unit, the boundaries of which aredescribed on a recorded final map, parcel map, or condominiumplan in sufficient detail to locate all boundaries thereof. The areawithin these boundaries may be filled with air, earth, or water, orany combination thereof, and need not be physically attached toland except by easements for access and, if necessary, support. Thedescription of the unit may refer to (1) boundaries described in therecorded final map, parcel map, or condominium plan, (2) physicalboundaries, either in existence, or to be constructed, such as walls,floors, and ceilings of a structure or any portion thereof, (3) anentire structure containing one or more units, or (4) anycombination thereof. The portion or portions of the real propertyheld in undivided interest may be all of the real property, exceptfor the separate interests, or may include a particular three-dimensional portion thereof, the boundaries of which are describedon a recorded final map, parcel map, or condominium plan. Thearea within these boundaries may be filled with air, earth, or water,or any combination thereof, and need not be physically attached toland except by easements for access and, if necessary, support. Anindividual condominium within a condominium project mayinclude, in addition, a separate interest in other portions of the realproperty.

(g) “Declarant” means the person or group of persons designatedin the declaration as declarant, or if no declarant is designated, theperson or group of persons who sign the original declaration orwho succeed to special rights, preferences, or privileges designatedin the declaration as belonging to the signator of the originaldeclaration.

(h) “Declaration” means the document, however denominated,which contains the information required by Section 1353.

(i) “Exclusive use common area” means a portion of thecommon areas designated by the declaration for the exclusive useof one or more, but fewer than all, of the owners of the separate


interests and which is or will be appurtenant to the separate interestor interests.

(1) Unless the declaration otherwise provides, any shutters,awnings, window boxes, doorsteps, stoops, porches, balconies,patios, exterior doors, doorframes, and hardware incident thereto,screens and windows or other fixtures designed to serve a singleseparate interest, but located outside the boundaries of the separateinterest, are exclusive use common areas allocated exclusively tothat separate interest.

(2) Notwithstanding the provisions of the declaration, internaland external telephone wiring designed to serve a single separateinterest, but located outside the boundaries of the separate interest,are exclusive use common areas allocated exclusively to thatseparate interest.

(j) “Governing documents” means the declaration and any otherdocuments, such as bylaws, operating rules of the association,articles of incorporation, or articles of association, which governthe operation of the common interest development or association.

(k) “Planned development” means a development (other than acommunity apartment project, a condominium project, or a stockcooperative) having either or both of the following features:

(1) The common area is owned either by an association or incommon by the owners of the separate interests who possessappurtenant rights to the beneficial use and enjoyment of thecommon area.

(2) A power exists in the association to enforce an obligation ofan owner of a separate interest with respect to the beneficial useand enjoyment of the common area by means of an assessmentwhich may become a lien upon the separate interests in accordancewith Section 1367 or 1367.1.

(l) “Separate interest” has the following meanings:(1) In a community apartment project, “separate interest” means

the exclusive right to occupy an apartment, as specified insubdivision (d).

(2) In a condominium project, “separate interest” means anindividual unit, as specified in subdivision (f).

(3) In a planned development, “separate interest” means aseparately owned lot, parcel, area, or space.


(4) In a stock cooperative, “separate interest” means theexclusive right to occupy a portion of the real property, asspecified in subdivision (m).

Unless the declaration or condominium plan, if any exists,otherwise provides, if walls, floors, or ceilings are designated asboundaries of a separate interest, the interior surfaces of theperimeter walls, floors, ceilings, windows, doors, and outletslocated within the separate interest are part of the separate interestand any other portions of the walls, floors, or ceilings are part ofthe common areas.

The estate in a separate interest may be a fee, a life estate, anestate for years, or any combination of the foregoing.

(m) “Stock cooperative” means a development in which acorporation is formed or availed of, primarily for the purpose ofholding title to, either in fee simple or for a term of years,improved real property, and all or substantially all of theshareholders of the corporation receive a right of exclusiveoccupancy in a portion of the real property, title to which is held bythe corporation. The owners’ interest in the corporation, whetherevidenced by a share of stock, a certificate of membership, orotherwise, shall be deemed to be an interest in a common interestdevelopment and a real estate development for purposes ofsubdivision (f) of Section 25100 of the Corporations Code.

A “stock cooperative” includes a limited equity housingcooperative which is a stock cooperative that meets the criteria ofSection 33007.5 of the Health and Safety Code.

CHAPTER 2. GOVERNING DOCUMENTS

Article 1. Creation

1352. This title applies and a common interest development iscreated whenever a separate interest coupled with an interest in thecommon area or membership in the association is, or has been,conveyed, provided, all of the following are recorded:

(a) A declaration.(b) A condominium plan, if any exists.(c) A final map or parcel map, if Division 2 (commencing with

Section 66410) of Title 7 of the Government Code requires the


recording of either a final map or parcel map for the commoninterest development.

1352.5. (a) No declaration or other governing document shallinclude a restrictive covenant in violation of Section 12955 of theGovernment Code.

(b) Notwithstanding any other provision of law or provision ofthe governing documents, the board of directors of an association,without approval of the owners, shall amend any declaration orother governing document that includes a restrictive covenantprohibited by this section to delete the restrictive covenant, andshall restate the declaration or other governing document withoutthe restrictive covenant but with no other change to the declarationor governing document.

(c) If after providing written notice to an association requestingthat the association delete a restrictive covenant that violatessubdivision (a), and the association fails to delete the restrictivecovenant within 30 days of receiving the notice, the Department ofFair Employment and Housing, a city or county in which acommon interest development is located, or any person may bringan action against the association for injunctive relief to enforcesubdivision (a). The court may award attorney’s fees to theprevailing party.

1353. (a)(1) A declaration, recorded on or after January 1, 1986,shall contain a legal description of the common interestdevelopment, and a statement that the common interestdevelopment is a community apartment project, condominiumproject, planned development, stock cooperative, or combinationthereof. The declaration shall additionally set forth the name of theassociation and the restrictions on the use or enjoyment of anyportion of the common interest development that are intended to beenforceable equitable servitudes. If the property is located withinan airport influence area, a declaration, recorded after January 1,2004, shall contain the following statement:

NOTICE OF AIRPORT IN VICINITY

This property is presently located in the vicinityof an airport, within what is known as an airportinfluence area. For that reason, the property may besubject to some of the annoyances or


inconveniences associated with proximity to airportoperations (for example: noise, vibration, or odors).Individual sensitivities to those annoyances canvary from person to person. You may wish toconsider what airport annoyances, if any, areassociated with the property before you completeyour purchase and determine whether they areacceptable to you.

(2) For purposes of this section, an “airport influence area,” alsoknown as an “airport referral area,” is the area in which current orfuture airport-related noise, overflight, safety, or airspaceprotection factors may significantly affect land uses or necessitaterestrictions on those uses as determined by an airport land usecommission.

(3) The statement in a declaration acknowledging that a propertyis located in an airport influence area does not constitute a titledefect, lien, or encumbrance.

(b) The declaration may contain any other matters the originalsignator of the declaration or the owners consider appropriate.

1353.5. (a) Except as required for the protection of the publichealth or safety, no declaration or other governing document shalllimit or prohibit, or be construed to limit or prohibit, the display ofthe flag of the United States by an owner on or in the owner’sseparate interest or within the owner’s exclusive use common area,as defined in Section 1351.

(b) For purposes of this section, “display of the flag of the UnitedStates” means a flag of the United States made of fabric, cloth, orpaper displayed from a staff or pole or in a window, and does notmean a depiction or emblem of the flag of the United States madeof lights, paint, roofing, siding, paving materials, flora, or balloons,or any other similar building, landscaping, or decorativecomponent.

(c) In any action to enforce this section, the prevailing party shallbe awarded reasonable attorneys’ fees and costs.

Article 2. Enforcement

1354. (a) The covenants and restrictions in the declaration shallbe enforceable equitable servitudes, unless unreasonable, and shall


inure to the benefit of and bind all owners of separate interests inthe development. Unless the declaration states otherwise, theseservitudes may be enforced by any owner of a separate interest orby the association, or by both.

(b) Unless the applicable time limitation for commencing theaction would run within 120 days, prior to the filing of a civilaction by either an association or an owner or a member of acommon interest development solely for declaratory relief orinjunctive relief, or for declaratory relief or injunctive relief inconjunction with a claim for monetary damages, other thanassociation assessments, not in excess of five thousand dollars($5,000), related to the enforcement of the governing documents,the parties shall endeavor, as provided in this subdivision, tosubmit their dispute to a form of alternative dispute resolution suchas mediation or arbitration. The form of alternative disputeresolution chosen may be binding or nonbinding at the option ofthe parties. Any party to such a dispute may initiate this process byserving on another party to the dispute a Request for Resolution.The Request for Resolution shall include (1) a brief description ofthe dispute between the parties, (2) a request for alternative disputeresolution, and (3) a notice that the party receiving the Request forResolution is required to respond thereto within 30 days of receiptor it will be deemed rejected. Service of the Request for Resolutionshall be in the same manner as prescribed for service in a smallclaims action as provided in Section 116.340 of the Code of CivilProcedure. Parties receiving a Request for Resolution shall have 30days following service of the Request for Resolution to accept orreject alternative dispute resolution and, if not accepted within the30-day period by a party, shall be deemed rejected by that party. Ifalternative dispute resolution is accepted by the party upon whomthe Request for Resolution is served, the alternative disputeresolution shall be completed within 90 days of receipt of theacceptance by the party initiating the Request for Resolution,unless extended by written stipulation signed by both parties. Thecosts of the alternative dispute resolution shall be borne by theparties.

(c) At the time of filing a civil action by either an association oran owner or a member of a common interest development solelyfor declaratory relief or injunctive relief, or for declaratory relief orinjunctive relief in conjunction with a claim for monetary damages


not in excess of five thousand dollars ($5,000), related to theenforcement of the governing documents, the party filing theaction shall file with the complaint a certificate stating thatalternative dispute resolution has been completed in compliancewith subdivision (b). The failure to file a certificate as required bysubdivision (b) shall be grounds for a demurrer pursuant to Section430.10 of the Code of Civil Procedure or a motion to strikepursuant to Section 435 of the Code of Civil Procedure unless thefiling party certifies in writing that one of the other parties to thedispute refused alternative dispute resolution prior to the filing ofthe complaint, that preliminary or temporary injunctive relief isnecessary, or that alternative dispute resolution is not required bysubdivision (b), because the limitation period for bringing theaction would have run within the 120-day period next followingthe filing of the action, or the court finds that dismissal of theaction for failure to comply with subdivision (b) would result insubstantial prejudice to one of the parties.

(d) Once a civil action specified in subdivision (a) to enforce thegoverning documents has been filed by either an association or anowner or member of a common interest development, upon writtenstipulation of the parties the matter may be referred to alternativedispute resolution and stayed. The costs of the alternative disputeresolution shall be borne by the parties. During this referral, theaction shall not be subject to the rules implementing subdivision(c) of Section 68603 of the Government Code.

(e) The requirements of subdivisions (b) and (c) shall not applyto the filing of a cross-complaint.

(f) In any action specified in subdivision (a) to enforce thegoverning documents, the prevailing party shall be awardedreasonable attorney’s fees and costs. Upon motion by any party forattorney’s fees and costs to be awarded to the prevailing party inthese actions, the court, in determining the amount of the award,may consider a party’s refusal to participate in alternative disputeresolution prior to the filing of the action.

(g) Unless consented to by both parties to alternative disputeresolution that is initiated by a Request for Resolution undersubdivision (b), evidence of anything said or of admissions madein the course of the alternative dispute resolution process shall notbe admissible in evidence, and testimony or disclosure of such a


statement or admission may not be compelled, in any civil actionin which, pursuant to law, testimony can be compelled to be given.

(h) Unless consented to by both parties to alternative disputeresolution that is initiated by a Request for Resolution undersubdivision (b), documents prepared for the purpose or in thecourse of, or pursuant to, the alternative dispute resolution shall notbe admissible in evidence, and disclosure of these documents maynot be compelled, in any civil action in which, pursuant to law,testimony can be compelled to be given.

(i) Members of the association shall annually be provided asummary of the provisions of this section, which specificallyreferences this section. The summary shall include the followinglanguage:

“Failure by any member of the association to comply with theprefiling requirements of Section 1354 of the Civil Code mayresult in the loss of your rights to sue the association or anothermember of the association regarding enforcement of the governingdocuments.”

The summary shall be provided either at the time the pro formabudget required by Section 1365 is distributed or in the mannerspecified in Section 5016 of the Corporations Code.

(j) Any Request for Resolution sent to the owner of a separateinterest pursuant to subdivision (b) shall include a copy of thissection.

Article 3. Amendment

1355. (a) The declaration may be amended pursuant to thegoverning documents or this title. Except as provided in Section1356, an amendment is effective after (1) the approval of thepercentage of owners required by the governing documents hasbeen given, (2) that fact has been certified in a writing executedand acknowledged by the officer designated in the declaration orby the association for that purpose, or if no one is designated, bythe president of the association, and (3) that writing has beenrecorded in each county in which a portion of the common interestdevelopment is located.

(b) Except to the extent that a declaration provides by its expressterms that it is not amendable, in whole or in part, a declarationwhich fails to include provisions permitting its amendment at all


times during its existence may be amended at any time. Forpurposes of this subdivision, an amendment is only effective after(1) the proposed amendment has been distributed to all of theowners of separate interests in the common interest developmentby first-class mail postage prepaid or personal delivery not lessthan 15 days and not more than 60 days prior to any approval beingsolicited; (2) the approval of owners representing more than 50percent, or any higher percentage required by the declaration forthe approval of an amendment to the declaration, of the separateinterests in the common interest development has been given, andthat fact has been certified in a writing, executed andacknowledged by an officer of the association; and (3) theamendment has been recorded in each county in which a portion ofthe common interest development is located. A copy of anyamendment adopted pursuant to this subdivision shall bedistributed by first-class mail postage prepaid or personal deliveryto all of the owners of separate interest immediately upon itsrecordation.

1355.5. (a) Notwithstanding any provision of the governingdocuments of a common interest development to the contrary, theboard of directors of the association may, after the developer of thecommon interest development has completed construction of thedevelopment, has terminated construction activities, and hasterminated his or her marketing activities for the sale, lease, orother disposition of separate interests within the development,adopt an amendment deleting from any of the governingdocuments any provision which is unequivocally designed andintended, or which by its nature can only have been designed orintended, to facilitate the developer in completing the constructionor marketing of the development. However, provisions of thegoverning documents relative to a particular construction ormarketing phase of the development may not be deleted under theauthorization of this subdivision until that construction ormarketing phase has been completed.

(b) The provisions which may be deleted by action of the boardshall be limited to those which provide for access by the developerover or across the common area for the purposes of (a) completionof construction of the development, and (b) the erection,construction, or maintenance of structures or other facilities


designed to facilitate the completion of construction or marketingof separate interests.

(c) At least 30 days prior to taking action pursuant to subdivision(a), the board of directors of the association shall mail to all ownersof the separate interests, by first-class mail, (1) a copy of allamendments to the governing documents proposed to be adoptedunder subdivision (a) and (2) a notice of the time, date, and placethe board of directors will consider adoption of the amendments.The board of directors of an association may consider adoption ofamendments to the governing documents pursuant to subdivision(a) only at a meeting which is open to all owners of the separateinterests in the common interest development, who shall be givenopportunity to make comments thereon. All deliberations of theboard of directors on any action proposed under subdivision (a)shall only be conducted in such an open meeting.

(d) The board of directors of the association may not amend thegoverning documents pursuant to this section without the approvalof the owners, casting a majority of the votes at a meeting orelection of the association constituting a quorum and conducted inaccordance with Chapter 5 (commencing with Section 7510) ofPart 3 of Division 2 of Title 1 of, and Section 7613 of, theCorporations Code. For the purposes of this section, “quorum”means more than 50 percent of the owners who own no more thantwo separate interests in the development.

1356. (a) If in order to amend a declaration, the declarationrequires owners having more than 50 percent of the votes in theassociation, in a single class voting structure, or owners havingmore than 50 percent of the votes in more than one class in avoting structure with more than one class, to vote in favor of theamendment, the association, or any owner of a separate interest,may petition the superior court of the county in which the commoninterest development is located for an order reducing thepercentage of the affirmative votes necessary for such anamendment. The petition shall describe the effort that has beenmade to solicit approval of the association members in the mannerprovided in the declaration, the number of affirmative and negativevotes actually received, the number or percentage of affirmativevotes required to effect the amendment in accordance with theexisting declaration, and other matters the petitioner considers


relevant to the court’s determination. The petition shall alsocontain, as exhibits thereto, copies of all of the following:

(1) The governing documents.(2) A complete text of the amendment.(3) Copies of any notice and solicitation materials utilized in the

solicitation of owner approvals.(4) A short explanation of the reason for the amendment.(5) Any other documentation relevant to the court’s

determination.(b) Upon filing the petition, the court shall set the matter for

hearing and issue an ex parte order setting forth the manner inwhich notice shall be given.

(c) The court may, but shall not be required to, grant the petitionif it finds all of the following:

(1) The petitioner has given not less than 15 days written noticeof the court hearing to all members of the association, to anymortgagee of a mortgage or beneficiary of a deed of trust who isentitled to notice under the terms of the declaration, and to the city,county, or city and county in which the common interestdevelopment is located that is entitled to notice under the terms ofthe declaration.

(2) Balloting on the proposed amendment was conducted inaccordance with all applicable provisions of the governingdocuments.

(3) A reasonably diligent effort was made to permit all eligiblemembers to vote on the proposed amendment.

(4) Owners having more than 50 percent of the votes, in a singleclass voting structure, voted in favor of the amendment. In a votingstructure with more than one class, where the declaration requires amajority of more than one class to vote in favor of the amendment,owners having more than 50 percent of the votes of each classrequired by the declaration to vote in favor of the amendmentvoted in favor of the amendment.

(5) The amendment is reasonable.(6) Granting the petition is not improper for any reason stated in

subdivision (e).(d) If the court makes the findings required by subdivision (c),

any order issued pursuant to this section may confirm theamendment as being validly approved on the basis of theaffirmative votes actually received during the balloting period or


the order may dispense with any requirement relating to quorumsor to the number or percentage of votes needed for approval of theamendment that would otherwise exist under the governingdocuments.

(e) Subdivisions (a) to (d), inclusive, notwithstanding, the courtshall not be empowered by this section to approve any amendmentto the declaration that:

(1) Would change provisions in the declaration requiring theapproval of owners having more than 50 percent of the votes inmore than one class to vote in favor of an amendment, unlessowners having more than 50 percent of the votes in each affectedclass approved the amendment.

(2) Would eliminate any special rights, preferences, or privilegesdesignated in the declaration as belonging to the declarant, withoutthe consent of the declarant.

(3) Would impair the security interest of a mortgagee of amortgage or the beneficiary of a deed of trust without the approvalof the percentage of the mortgagees and beneficiaries specified inthe declaration, if the declaration requires the approval of aspecified percentage of the mortgagees and beneficiaries.

(f) An amendment is not effective pursuant to this section untilthe court order and amendment have been recorded in every countyin which a portion of the common interest development is located.The amendment may be acknowledged by, and the court order andamendment may be recorded by, any person designated in thedeclaration or by the association for that purpose, or if no one isdesignated for that purpose, by the president of the association.Upon recordation of the amendment and court order, thedeclaration, as amended in accordance with this section, shall havethe same force and effect as if the amendment were adopted incompliance with every requirement imposed by the governingdocuments.

(g) Within a reasonable time after the amendment is recorded theassociation shall mail a copy of the amendment to each member ofthe association, together with a statement that the amendment hasbeen recorded.

1357. (a) The Legislature finds that there are common interestdevelopments that have been created with deed restrictions whichdo not provide a means for the property owners to extend the term


of the declaration. The Legislature further finds that covenants andrestrictions, contained in the declaration, are an appropriate methodfor protecting the common plan of developments and to provide fora mechanism for financial support for the upkeep of common areasincluding, but not limited to, roofs, roads, heating systems, andrecreational facilities. If declarations terminate prematurely,common interest developments may deteriorate and the housingsupply of affordable units could be impacted adversely.

The Legislature further finds and declares that it is in the publicinterest to provide a vehicle for extending the term of thedeclaration if owners having more than 50 percent of the votes inthe association choose to do so.

(b) A declaration which specifies a termination date, but whichcontains no provision for extension of the termination date, may beextended by the approval of owners having more than 50 percentof the votes in the association or any greater percentage specifiedin the declaration for an amendment thereto. If the approval ofowners having more than 50 percent of the votes in the associationis required to amend the declaration, the term of the declarationmay be extended in accordance with Section 1356.

(c) Any amendment to a declaration made in accordance withsubdivision (b) shall become effective upon recordation inaccordance with Section 1355.

(d) No single extension of the terms of the declaration madepursuant to this section shall exceed the initial term of thedeclaration or 20 years, whichever is less. However, more than oneextension may occur pursuant to this section.

CHAPTER 3. OWNERSHIP RIGHTS ANDINTERESTS

1358. (a) In a community apartment project, any conveyance,judicial sale, or other voluntary or involuntary transfer of theseparate interest includes the undivided interest in the communityapartment project. Any conveyance, judicial sale, or othervoluntary or involuntary transfer of the owner’s entire estate alsoincludes the owner’s membership interest in the association.

(b) In a condominium project the common areas are not subjectto partition, except as provided in Section 1359. Any conveyance,judicial sale, or other voluntary or involuntary transfer of the


separate interest includes the undivided interest in the commonareas. Any conveyance, judicial sale, or other voluntary orinvoluntary transfer of the owner’s entire estate also includes theowner’s membership interest in the association.

(c) In a planned development, any conveyance, judicial sale, orother voluntary or involuntary transfer of the separate interestincludes the undivided interest in the common areas, if any exist.Any conveyance, judicial sale, or other voluntary or involuntarytransfer of the owner’s entire estate also includes the owner’smembership interest in the association.

(d) In a stock cooperative, any conveyance, judicial sale, or othervoluntary or involuntary transfer of the separate interest includesthe ownership interest in the corporation, however evidenced. Anyconveyance, judicial sale, or other voluntary or involuntary transferof the owner’s entire estate also includes the owner’s membershipinterest in the association.

Nothing in this section prohibits the transfer of exclusive useareas, independent of any other interest in a common interestsubdivision, if authorization to separately transfer exclusive useareas is expressly stated in the declaration and the transfer occursin accordance with the terms of the declaration.

Any restrictions upon the severability of the component interestsin real property which are contained in the declaration shall not bedeemed conditions repugnant to the interest created within themeaning of Section 711 of the Civil Code. However, theserestrictions shall not extend beyond the period in which the right topartition a project is suspended under Section 1359.

1359. (a) Except as provided in this section, the common areas ina condominium project shall remain undivided, and there shall beno judicial partition thereof. Nothing in this section shall bedeemed to prohibit partition of a cotenancy in a condominium.

(b) The owner of a separate interest in a condominium projectmay maintain a partition action as to the entire project as if theowners of all of the separate interests in the project were tenants incommon in the entire project in the same proportion as theirinterests in the common areas. The court shall order partition underthis subdivision only by sale of the entire condominium project andonly upon a showing of one of the following:


(1) More than three years before the filing of the action, thecondominium project was damaged or destroyed, so that a materialpart was rendered unfit for its prior use, and the condominiumproject has not been rebuilt or repaired substantially to its stateprior to the damage or destruction.

(2) Three-fourths or more of the project is destroyed orsubstantially damaged and owners of separate interests holding inthe aggregate more than a 50-percent interest in the common areasoppose repair or restoration of the project.

(3) The project has been in existence more than 50 years, isobsolete and uneconomic, and owners of separate interests holdingin the aggregate more than a 50-percent interest in the commonarea oppose repair or restoration of the project.

(4) The conditions for such a sale, set forth in the declaration,have been met.

1360. (a) Subject to the provisions of the governing documentsand other applicable provisions of law, if the boundaries of theseparate interest are contained within a building, the owner of theseparate interest may do the following:

(1) Make any improvements or alterations within the boundariesof his or her separate interest that do not impair the structuralintegrity or mechanical systems or lessen the support of anyportions of the common interest development.

(2) Modify a unit in a condominium project, at the owner’sexpense, to facilitate access for persons who are blind, visuallyhandicapped, deaf, or physically disabled, or to alter conditionswhich could be hazardous to these persons. These modificationsmay also include modifications of the route from the public way tothe door of the unit for the purposes of this paragraph if the unit ison the ground floor or already accessible by an existing ramp orelevator. The right granted by this paragraph is subject to thefollowing conditions:

(A) The modifications shall be consistent with applicablebuilding code requirements.

(B) The modifications shall be consistent with the intent ofotherwise applicable provisions of the governing documentspertaining to safety or aesthetics.

(C) Modifications external to the dwelling shall not preventreasonable passage by other residents, and shall be removed by the


owner when the unit is no longer occupied by persons requiringthose modifications who are blind, visually handicapped, deaf, orphysically disabled.

(D) Any owner who intends to modify a unit pursuant to thisparagraph shall submit his or her plans and specifications to theassociation of the condominium project for review to determinewhether the modifications will comply with the provisions of thisparagraph. The association shall not deny approval of the proposedmodifications under this paragraph without good cause.

(b) Any change in the exterior appearance of a separate interestshall be in accordance with the governing documents andapplicable provisions of law.

1360.5. (a) No governing documents shall prohibit the owner ofa separate interest within a common interest development fromkeeping at least one pet within the common interest development,subject to reasonable rules and regulations of the association. Thissection may not be construed to affect any other rights provided bylaw to an owner of a separate interest to keep a pet within thedevelopment.

(b) For purposes of this section, “pet” means any domesticatedbird, cat, dog, aquatic animal kept within an aquarium, or otheranimal as agreed to between the association and the homeowner.

(c) If the association implements a rule or regulation restrictingthe number of pets an owner may keep, the new rule or regulationshall not apply to prohibit an owner from continuing to keep anypet that the owner currently keeps in his or her separate interest ifthe pet otherwise conforms with the previous rules or regulationsrelating to pets.

(d) For the purposes of this section, “governing documents” shallinclude, but are not limited to, the conditions, covenants, andrestrictions of the common interest development, and the bylaws,rules, and regulations of the association.

(e) This section shall become operative on January 1, 2001, andshall only apply to governing documents entered into, amended, orotherwise modified on or after that date.

1361. Unless the declaration otherwise provides:(a) In a community apartment project and condominium project,

and in those planned developments with common areas owned in


common by the owners of the separate interests, there areappurtenant to each separate interest nonexclusive rights of ingress,egress, and support, if necessary, through the common areas. Thecommon areas are subject to these rights.

(b) In a stock cooperative, and in a planned development withcommon areas owned by the association, there is an easement foringress, egress, and support, if necessary, appurtenant to eachseparate interest. The common areas are subject to theseeasements.

1361.5. Except as otherwise provided in law, an order of thecourt, or an order pursuant to a final and binding arbitrationdecision, an association may not deny an owner or occupantphysical access to his or her separate interest, either by restrictingaccess through the common areas to the owner’s separate interest,or by restricting access solely to the owner’s separate interest.

1362. Unless the declaration otherwise provides, in acondominium project, or in a planned development in which thecommon areas are owned by the owners of the separate interests,the common areas are owned as tenants in common, in equalshares, one for each unit or lot.

CHAPTER 4. GOVERNANCE

Article 1. Association

1363. (a) A common interest development shall be managed byan association which may be incorporated or unincorporated. Theassociation may be referred to as a community association.

(b) An association, whether incorporated or unincorporated, shallprepare a budget pursuant to Section 1365 and discloseinformation, if requested, in accordance with Section 1368.

(c) Unless the governing documents provide otherwise, andregardless of whether the association is incorporated orunincorporated, the association may exercise the powers granted toa nonprofit mutual benefit corporation, as enumerated in Section7140 of the Corporations Code, except that an unincorporatedassociation may not adopt or use a corporate seal or issuemembership certificates in accordance with Section 7313 of theCorporations Code.


The association, whether incorporated or unincorporated, mayexercise the powers granted to an association by Section 383 of theCode of Civil Procedure and the powers granted to the associationin this title.

(d) Meetings of the membership of the association shall beconducted in accordance with a recognized system ofparliamentary procedure or any parliamentary procedures theassociation may adopt.

(e) Notwithstanding any other provision of law, notice ofmeetings of the members shall specify those matters the boardintends to present for action by the members, but, except asotherwise provided by law, any proper matter may be presented atthe meeting for action.

(f) Members of the association shall have access to associationrecords in accordance with Article 3 (commencing with Section8330) of Chapter 13 of Part 3 of Division 2 of Title 1 of theCorporations Code.

(g) If an association adopts or has adopted a policy imposing anymonetary penalty, including any fee, on any association memberfor a violation of the governing documents or rules of theassociation, including any monetary penalty relating to theactivities of a guest or invitee of a member, the board of directorsshall adopt and distribute to each member, by personal delivery orfirst-class mail, a schedule of the monetary penalties that may beassessed for those violations, which shall be in accordance withauthorization for member discipline contained in the governingdocuments. The board of directors shall not be required todistribute any additional schedules of monetary penalties unlessthere are changes from the schedule that was adopted anddistributed to the members pursuant to this subdivision.

(h) When the board of directors is to meet to consider or imposediscipline upon a member, the board shall notify the member inwriting, by either personal delivery or first-class mail, at least 10days prior to the meeting. The notification shall contain, at aminimum, the date, time, and place of the meeting, the nature ofthe alleged violation for which a member may be disciplined, and astatement that the member has a right to attend and may addressthe board at the meeting. The board of directors of the associationshall meet in executive session if requested by the member beingdisciplined.


If the board imposes discipline on a member, the board shallprovide the member a written notification of the disciplinaryaction, by either personal delivery or first-class mail, within 15days following the action. A disciplinary action shall not beeffective against a member unless the board fulfills therequirements of this subdivision.

(i) Whenever two or more associations have consolidated any oftheir functions under a joint neighborhood association or similarorganization, members of each participating association shall beentitled to attend all meetings of the joint association other thanexecutive sessions, (1) shall be given reasonable opportunity forparticipation in those meetings and (2) shall be entitled to the sameaccess to the joint association’s records as they are to theparticipating association’s records.

(j) Nothing in this section shall be construed to create, expand, orreduce the authority of the board of directors of an association toimpose monetary penalties on an association member for aviolation of the governing documents or rules of the association.

Article 2. Common Interest Development OpenMeeting Act

1363.05. (a) This section shall be known and may be cited as theCommon Interest Development Open Meeting Act.

(b) Any member of the association may attend meetings of theboard of directors of the association, except when the boardadjourns to executive session to consider litigation, matters relatingto the formation of contracts with third parties, member discipline,personnel matters, or to meet with a member, upon the member’srequest, regarding the member’s payment of assessments, asspecified in Section 1367 or 1367.1. The board of directors of theassociation shall meet in executive session, if requested by amember who may be subject to a fine, penalty, or other form ofdiscipline, and the member shall be entitled to attend the executivesession.

(c) Any matter discussed in executive session shall be generallynoted in the minutes of the immediately following meeting that isopen to the entire membership.

(d) The minutes, minutes proposed for adoption that are markedto indicate draft status, or a summary of the minutes, of any


meeting of the board of directors of an association, other than anexecutive session, shall be available to members within 30 days ofthe meeting. The minutes, proposed minutes, or summary minutesshall be distributed to any member of the association upon requestand upon reimbursement of the association’s costs for making thatdistribution.

(e) Members of the association shall be notified in writing at thetime that the pro forma budget required in Section 1365 isdistributed, or at the time of any general mailing to the entiremembership of the association, of their right to have copies of theminutes of meetings of the board of directors, and how and wherethose minutes may be obtained.

(f) As used in this section, “meeting” includes any congregationof a majority of the members of the board at the same time andplace to hear, discuss, or deliberate upon any item of businessscheduled to be heard by the board, except those matters that maybe discussed in executive session.

(g) Unless the time and place of meeting is fixed by the bylaws,or unless the bylaws provide for a longer period of notice,members shall be given notice of the time and place of a meetingas defined in subdivision (f), except for an emergency meeting, atleast four days prior to the meeting. Notice shall be given byposting the notice in a prominent place or places within thecommon area and by mail to any owner who had requestednotification of board meetings by mail, at the address requested bythe owner. Notice may also be given, by mail or delivery of thenotice to each unit in the development or by newsletter or similarmeans of communication.

(h) An emergency meeting of the board may be called by thepresident of the association, or by any two members of thegoverning body other than the president, if there are circumstancesthat could not have been reasonably foreseen which requireimmediate attention and possible action by the board, and which ofnecessity make it impracticable to provide notice as required bythis section.

(i) The board of directors of the association shall permit anymember of the association to speak at any meeting of theassociation or the board of directors, except for meetings of theboard held in executive session. A reasonable time limit for allmembers of the association to speak to the board of directors or


before a meeting of the association shall be established by theboard of directors.

Article 3. Managing Agents

1363.1. (a) A prospective managing agent of a common interestdevelopment shall provide a written statement to the board ofdirectors of the association of a common interest development assoon as practicable, but in no event more than 90 days, beforeentering into a management agreement which shall contain all ofthe following information concerning the managing agent:

(1) The names and business addresses of the owners or generalpartners of the managing agent. If the managing agent is acorporation, the written statement shall include the names andbusiness addresses of the directors and officers and shareholdersholding greater than 10 percent of the shares of the corporation.

(2) Whether or not any relevant licenses such as architecturaldesign, construction, engineering, real estate, or accounting havebeen issued by this state and are currently held by the personsspecified in paragraph (1). If a license is currently held by any ofthose persons, the statement shall contain the followinginformation:

(A) What license is held.(B) The dates the license is valid.(C) The name of the licensee appearing on that license.(3) Whether or not any relevant professional certifications or

designations such as architectural design, construction,engineering, real property management, or accounting are currentlyheld by any of the persons specified in paragraph (1), including,but not limited to, a professional common interest developmentmanager. If any certification or designation is held, the statementshall include the following information:

(A) What the certification or designation is and what entityissued it.

(B) The dates the certification or designation is valid.(C) The names in which the certification or designation is held.(b) As used in this section, a “managing agent” is a person or

entity who, for compensation or in expectation of compensation,exercises control over the assets of a common interest


development. A “managing agent” does not include either of thefollowing:

(1) A full-time employee of the association.(2) Any regulated financial institution operating within the

normal course of its regulated business practice.

1363.2. (a) A managing agent of a common interest developmentwho accepts or receives funds belonging to the association shalldeposit all such funds that are not placed into an escrow accountwith a bank, savings association, or credit union or into an accountunder the control of the association, into a trust fund accountmaintained by the managing agent in a bank, savings association,or credit union in this state. All funds deposited by the managingagent in the trust fund account shall be kept in this state in afinancial institution, as defined in Section 31041 of the FinancialCode, which is insured by the federal government, and shall bemaintained there until disbursed in accordance with writteninstructions from the association entitled to the funds.

(b) At the written request of the board of directors of theassociation, the funds the managing agent accepts or receives onbehalf of the association shall be deposited into an interest-bearingaccount in a bank, savings association, or credit union in this state,provided all of the following requirements are met:

(1) The account is in the name of the managing agent as trusteefor the association or in the name of the association.

(2) All of the funds in the account are covered by insuranceprovided by an agency of the federal government.

(3) The funds in the account are kept separate, distinct, and apartfrom the funds belonging to the managing agent or to any otherperson or entity for whom the managing agent holds funds in trustexcept that the funds of various associations may be commingledas permitted pursuant to subdivision (d).

(4) The managing agent discloses to the board of directors of theassociation the nature of the account, how interest will becalculated and paid, whether service charges will be paid to thedepository and by whom, and any notice requirements or penaltiesfor withdrawal of funds from the account.

(5) No interest earned on funds in the account shall inure directlyor indirectly to the benefit of the managing agent or his or heremployees.


(c) The managing agent shall maintain a separate record of thereceipt and disposition of all funds described in this section,including any interest earned on the funds.

(d) The managing agent shall not commingle the funds of theassociation with his or her own money or with the money of othersthat he or she receives or accepts, unless all of the followingrequirements are met:

(1) The managing agent commingled the funds of variousassociations on or before February 26, 1990, and has obtained awritten agreement with the board of directors of each associationthat he or she will maintain a fidelity and surety bond in an amountthat provides adequate protection to the associations as agreedupon by the managing agent and the board of directors of eachassociation.

(2) The managing agent discloses in the written agreementwhether he or she is deriving benefits from the commingledaccount or the bank, credit union, or savings institution where themoneys will be on deposit.

(3) The written agreement provided pursuant to this subdivisionincludes, but is not limited to, the name and address of the bondingcompanies, the amount of the bonds, and the expiration dates of thebonds.

(4) If there are any changes in the bond coverage or thecompanies providing the coverage, the managing agent disclosesthat fact to the board of directors of each affected association assoon as practical, but in no event more than 10 days after thechange.

(5) The bonds assure the protection of the association andprovide the association at least 10 days’ notice prior tocancellation.

(6) Completed payments on the behalf of the association aredeposited within 24 hours or the next business day and do notremain commingled for more than 10 calendar days.

(e) The prevailing party in an action to enforce this section shallbe entitled to recover reasonable legal fees and court costs.

(f) As used in this section, a “managing agent” is a person orentity, who for compensation or, in expectation of compensation,exercises control over the assets of the association. However, a“managing agent” does not include a full-time employee of theassociation or a regulated financial institution operating within the


normal course of business, or an attorney at law acting within thescope of his or her license.

(g) As used in this section, “completed payment” means fundsreceived which clearly identify the account to which the funds areto be credited.

Article 4. Public Information

1363.5. (a) The articles of incorporation of any common interestdevelopment association filed with the Secretary of State on orafter January 1, 1995, shall include a statement that shall be inaddition to the statement of purposes of the corporation, and that(1) identifies the corporation as an association formed to manage acommon interest development under the Davis-Stirling CommonInterest Development Act, (2) states the business or corporateoffice of the association, if any, and, if the office is not on the siteof the common interest development, states the nine-digit ZIPCode, front street, and nearest cross street for the physical locationof the common interest development, and (3) states the name andaddress of the association’s managing agent, as defined in Section1363.1, if any, and whether the association’s managing agent iscertified pursuant to Section 11502 of the Business and ProfessionsCode.

(b) The statement of principal business activity contained in theannual statement filed by an incorporated association with theSecretary of State pursuant to Section 1502 of the CorporationsCode shall also contain the statement specified in subdivision (a).

1363.6. (a) To assist with the identification of common interestdevelopments, each association, whether incorporated orunincorporated, shall submit to the Secretary of State, on a formand for a fee not to exceed thirty dollars ($30) that the Secretary ofState shall prescribe, the following information concerning theassociation and the development that it manages:

(1) A statement that the association is formed to manage acommon interest development under the Davis-Stirling CommonInterest Development Act.

(2) The name of the association.


(3) The street address of the association’s onsite office, or, ifnone, of the responsible officer or managing agent of theassociation.

(4) The address and either the daytime telephone number or e-mail address of the president of the association, other than theaddress, telephone number, or e-mail address of the association’sonsite office or managing agent of the association.

(5) The name, street address, and daytime telephone number ofthe association’s managing agent, if any.

(6) The county, and if in an incorporated area, the city in whichthe development is physically located. If the boundaries of thedevelopment are physically located in more than one county, eachof the counties in which it is located.

(7) If the development is in an unincorporated area, the cityclosest in proximity to the development.

(8) The nine-digit ZIP Code, front street, and nearest cross streetof the physical location of the development.

(9) The type of common interest development, as defined insubdivision (c) of Section 1351, managed by the association.

(10) The number of separate interests, as defined in subdivision(l) of Section 1351, in the development.

(b) The association shall submit the information required by thissection as follows:

(1) By incorporated associations, within 90 days after the filingof its original articles of incorporation, and thereafter at the timethe association files its biennial statement of principle businessactivity with the Secretary of State pursuant to Section 8210 of theCorporations Code.

(2) By unincorporated associations, in July of 2003, and in thatsame month biennially thereafter. Upon changing its status to thatof a corporation, the association shall comply with the filingdeadlines in paragraph (1).

(c) The association shall notify the Secretary of State of anychange in the street address of the association’s onsite office or ofthe responsible officer or managing agent of the association in theform and for a fee prescribed by the Secretary of State, within 60days of the change.

(d) On and after January 1, 2006, the penalty for an incorporatedassociation’s noncompliance with the initial or biennial filingrequirements of this section shall be suspension of the association’s


rights, privileges, and powers as a corporation and monetarypenalties, to the same extent and in the same manner as suspensionand monetary penalties imposed pursuant to Section 8810 of theCorporations Code.

(e) The Secretary of State shall make the information submittedpursuant to paragraph (4) of subdivision (a) available only forgovernmental purposes and only to members of the Legislature andthe Business, Transportation and Housing Agency, upon writtenrequest. All other information submitted pursuant to this sectionshall be subject to public inspection pursuant to the CaliforniaPublic Records Act, Chapter 3.5 (commencing with Section 6250)of Division 7 of Title 1 of the Government Code. The informationsubmitted pursuant to this section shall be made available forgovernmental or public inspection, as the case may be, on or beforeJuly 1, 2004, and thereafter.

CHAPTER 5. OPERATIONS

Article 1. Common Areas

1364. (a) Unless otherwise provided in the declaration of acommon interest development, the association is responsible forrepairing, replacing, or maintaining the common areas, other thanexclusive use common areas, and the owner of each separateinterest is responsible for maintaining that separate interest and anyexclusive use common area appurtenant to the separate interest.

(b)(1) In a community apartment project, condominium project,or stock cooperative, as defined in Section 1351, unless otherwiseprovided in the declaration, the association is responsible for therepair and maintenance of the common area occasioned by thepresence of wood-destroying pests or organisms.

(2) In a planned development as defined in Section 1351, unlessa different maintenance scheme is provided in the declaration, eachowner of a separate interest is responsible for the repair andmaintenance of that separate interest as may be occasioned by thepresence of wood-destroying pests or organisms. Upon approval ofthe majority of all members of the association, the responsibilityfor such repair and maintenance may be delegated to theassociation, which shall be entitled to recover the cost thereof as aspecial assessment.


(c) The costs of temporary relocation during the repair andmaintenance of the areas within the responsibility of theassociation shall be borne by the owner of the separate interestaffected.

(d)(1) The association may cause the temporary, summaryremoval of any occupant of a common interest development forsuch periods and at such times as may be necessary for prompt,effective treatment of wood-destroying pests or organisms.

(2) The association shall give notice of the need to temporarilyvacate a separate interest to the occupants and to the owners, notless than 15 days nor more than 30 days prior to the date of thetemporary relocation. The notice shall state the reason for thetemporary relocation, the date and time of the beginning oftreatment, the anticipated date and time of termination oftreatment, and that the occupants will be responsible for their ownaccommodations during the temporary relocation.

(3) Notice by the association shall be deemed complete uponeither:

(A) Personal delivery of a copy of the notice to the occupants,and sending a copy of the notice to the owners, if different than theoccupants, by first-class mail, postage prepaid at the most currentaddress shown on the books of the association.

(B) By sending a copy of the notice to the occupants at theseparate interest address and a copy of the notice to the owners, ifdifferent than the occupants, by first-class mail, postage prepaid, atthe most current address shown on the books of the association.

(e) For purposes of this section, “occupant” means an owner,resident, guest, invitee, tenant, lessee, sublessee, or other person inpossession on the separate interest.

(f) Notwithstanding the provisions of the declaration, the ownerof a separate interest is entitled to reasonable access to the commonareas for the purpose of maintaining the internal and externaltelephone wiring made part of the exclusive use common areas of aseparate interest pursuant to paragraph (2) of subdivision (i) ofSection 1351. The access shall be subject to the consent of theassociation, whose approval shall not be unreasonably withheld,and which may include the association’s approval of telephonewiring upon the exterior of the common areas, and other conditionsas the association determines reasonable.


Article 2. Fiscal Matters

1365. Unless the governing documents impose more stringentstandards, the association shall prepare and distribute to all of itsmembers the following documents:

(a) A pro forma operating budget, which shall include all of thefollowing:

(1) The estimated revenue and expenses on an accrual basis.(2) A summary of the association’s reserves based upon the most

recent review or study conducted pursuant to Section 1365.5,which shall be printed in boldface type and include all of thefollowing:

(A) The current estimated replacement cost, estimated remaininglife, and estimated useful life of each major component.

(B) As of the end of the fiscal year for which the study isprepared:

(i) The current estimate of the amount of cash reserves necessaryto repair, replace, restore, or maintain the major components.

(ii) The current amount of accumulated cash reserves actually setaside to repair, replace, restore, or maintain major components.

(iii) If applicable, the amount of funds received from either acompensatory damage award or settlement to an association fromany person or entity for injuries to property, real or personal,arising out of any construction or design defects, and theexpenditure or disposition of funds, including the amountsexpended for the direct and indirect costs of repair of constructionor design defects. These amounts shall be reported at the end of thefiscal year for which the study is prepared as separate line itemsunder cash reserves pursuant to clause (ii). In lieu of complyingwith the requirements set forth in this clause, an association that isobligated to issue a review of their financial statement pursuant tosubdivision (b) may include in the review a statement containingall of the information required by this clause.

(C) The percentage that the amount determined for purposes ofclause (ii) subparagraph (B) equals the amount determined forpurposes of clause (i) of subparagraph (B).

(3) A statement as to whether the board of directors of theassociation has determined or anticipates that the levy of one ormore special assessments will be required to repair, replace, or


restore any major component or to provide adequate reservestherefor.

(4) A general statement addressing the procedures used for thecalculation and establishment of those reserves to defray the futurerepair, replacement, or additions to those major components thatthe association is obligated to maintain.

The summary of the association’s reserves disclosed pursuant toparagraph (2) shall not be admissible in evidence to show improperfinancial management of an association, provided that otherrelevant and competent evidence of the financial condition of theassociation is not made inadmissible by this provision.

A copy of the operating budget shall be annually distributed notless than 45 days nor more than 60 days prior to the beginning ofthe association’s fiscal year.

(b) A review of the financial statement of the association shall beprepared in accordance with generally accepted accountingprinciples by a licensee of the California Board of Accountancy forany fiscal year in which the gross income to the associationexceeds seventy-five thousand dollars ($75,000). A copy of thereview of the financial statement shall be distributed within 120days after the close of each fiscal year.

(c) In lieu of the distribution of the pro forma operating budgetrequired by subdivision (a), the board of directors may elect todistribute a summary of the pro forma operating budget to all of itsmembers with a written notice that the pro forma operating budgetis available at the business office of the association or at anothersuitable location within the boundaries of the development, andthat copies will be provided upon request and at the expense of theassociation. If any member requests that a copy of the pro formaoperating budget required by subdivision (a) be mailed to themember, the association shall provide the copy to the member byfirst-class United States mail at the expense of the association anddelivered within five days. The written notice that is distributed toeach of the association members shall be in at least 10-pointboldface type on the front page of the summary of the budget.

(d) A statement describing the association’s policies andpractices in enforcing lien rights or other legal remedies for defaultin payment of its assessments against its members shall beannually delivered to the members during the 60-day period


immediately preceding the beginning of the association’s fiscalyear.

(e)(1) A summary of the association’s property, general liability,and earthquake and flood and fidelity insurance policies, whichshall be distributed within 60 days preceding the beginning of theassociation’s fiscal year, that includes all of the followinginformation about each policy:

(A) The name of the insurer.(B) The type of insurance.(C) The policy limits of the insurance.(D) The amount of deductibles, if any.(2) The association shall, as soon as reasonably practicable,

notify its members by first-class mail if any of the policiesdescribed in paragraph (1) have lapsed, been canceled, and are notimmediately renewed, restored, or replaced, or if there is asignificant change, such as a reduction in coverage or limits or anincrease in the deductible, as to any of those policies. If theassociation receives any notice of nonrenewal of a policy describedin paragraph (1), the association shall immediately notify itsmembers if replacement coverage will not be in effect by the datethe existing coverage will lapse.

(3) To the extent that any of the information required to bedisclosed pursuant to paragraph (1) is specified in the insurancepolicy declaration page, the association may meet its obligation todisclose that information by making copies of that page anddistributing it to all of its members.

(4) The summary distributed pursuant to paragraph (1) shallcontain, in at least 10-point boldface type, the following statement:

“This summary of the association’s policies of insuranceprovides only certain information, as required by subdivision (e) ofSection 1365 of the Civil Code, and should not be considered asubstitute for the complete policy terms and conditions containedin the actual policies of insurance. Any association member may,upon request and provision of reasonable notice, review theassociation’s insurance policies and, upon request and payment ofreasonable duplication charges, obtain copies of those policies.Although the association maintains the policies of insurancespecified in this summary, the association’s policies of insurancemay not cover your property, including personal property or, real


property improvements to or around your dwelling, or personalinjuries or other losses that occur within or around your dwelling.Even if a loss is covered, you may nevertheless be responsible forpaying all or a portion of any deductible that applies. Associationmembers should consult with their individual insurance broker oragent for appropriate additional coverage.”

1365.1. (a) The association shall distribute the written noticedescribed in subdivision (b) to each member of the associationduring the 60-day period immediately preceding the beginning ofthe association’s fiscal year. The notice shall be printed in at least12-point type. An association distributing the notice to an owner ofan interest that is described in Section 11003.5 of the Business andProfessions Code may delete from the notice described insubdivision (b) the portion regarding meetings and payment plans.

(b) The notice required by this section shall read as follows:

“NOTICE

ASSESSMENTS AND FORECLOSURE

This notice outlines some of the rights and responsibilities ofowners of property in common interest developments and theassociations that manage them. Please refer to the sections of theCivil Code indicated for further information. A portion of theinformation in this notice applies only to liens recorded on or afterJanuary 1, 2003. You may wish to consult a lawyer if you disputean assessment.

ASSESSMENTS AND NONJUDICIAL FORECLOSURE

The failure to pay association assessments may result in the lossof an owner’s property without court action, often referred to asnonjudicial foreclosure. When using nonjudicial foreclosure, theassociation records a lien on the owner’s property. The owner’sproperty may be sold to satisfy the lien if the lien is not paid.Assessments become delinquent 15 days after they are due, unlessthe governing documents of the association provide for a longertime. (Sections 1366 and 1367.1 of the Civil Code)

In a nonjudicial foreclosure, the association may recoverassessments, reasonable costs of collection, reasonable attorney’sfees, late charges, and interest. The association may not usenonjudicial foreclosure to collect fines or penalties, except for


costs to repair common areas damaged by a member or a member’sguests, if the governing documents provide for this. (Sections 1366and 1367.1 of the Civil Code)

The association must comply with the requirements of Section1367.1 of the Civil Code when collecting delinquent assessments.If the association fails to follow these requirements, it may notrecord a lien on the owner’s property until it has satisfied thoserequirements. Any additional costs that result from satisfying therequirements are the responsibility of the association. (Section1367.1 of the Civil Code)

At least 30 days prior to recording a lien on an owner’s separateinterest, the association must provide the owner of record withcertain documents by certified mail. Among these documents, theassociation must send a description of its collection and lienenforcement procedures and the method of calculating the amount.It must also provide an itemized statement of the charges owed bythe owner. An owner has a right to review the association’s recordsto verify the debt. (Section 1367.1 of the Civil Code)

If a lien is recorded against an owner’s property in error, theperson who recorded the lien is required to record a lien releasewithin 21 days, and to provide an owner certain documents in thisregard. (Section 1367.1 of the Civil Code)

The collection practices of the association may be governed bystate and federal laws regarding fair debt collection. Penalties canbe imposed for debt collection practices that violate these laws.

PAYMENTS

When an owner makes a payment, he or she may request areceipt, and the association is required to provide it. On the receipt,the association must indicate the date of payment and the personwho received it. The association must inform owners of a mailingaddress for overnight payments. (Sections 1367.1 and 1367.1 ofthe Civil Code)

An owner may dispute an assessment debt by giving the board ofthe association a written explanation, and the board must respondwithin 15 days if certain conditions are met. An owner may payassessments that are in dispute in full under protest, and thenrequest alternative dispute resolution. (Sections 1366.3 and 1367.1of the Civil Code)


An owner is not liable for charges, interest, and costs ofcollection, if it is established that the assessment was paid properlyon time. (Section 1367.1 of the Civil Code)

MEETINGS AND PAYMENT PLANS

An owner of a separate interest that is not a time-share mayrequest the association to consider a payment plan to satisfy adelinquent assessment. The association must inform owners of thestandards for payment plans, if any exist. (Section 1367.1 of theCivil Code)

The board of the directors must meet with an owner who makesa proper written request for a meeting to discuss a payment planwhen the owner has received a notice of a delinquent assessment.These payment plans must conform with the payment planstandards of the association, if they exist. (Section 1367.1 of theCivil Code)”

1365.5. (a) Unless the governing documents impose morestringent standards, the board of directors of the association shalldo all of the following:

(1) Review a current reconciliation of the association’s operatingaccounts on at least a quarterly basis.

(2) Review a current reconciliation of the association’s reserveaccounts on at least a quarterly basis.

(3) Review, on at least a quarterly basis, the current year’s actualreserve revenues and expenses compared to the current year’sbudget.

(4) Review the latest account statements prepared by thefinancial institutions where the association has its operating andreserve accounts.

(5) Review an income and expense statement for theassociation’s operating and reserve accounts on at least a quarterlybasis.

(b) The signatures of at least two persons, who shall be membersof the association’s board of directors, or one officer who is not amember of the board of directors and a member of the board ofdirectors, shall be required for the withdrawal of moneys from theassociation’s reserve accounts.

(c)(1) The board of directors shall not expend funds designatedas reserve funds for any purpose other than the repair, restoration,


replacement, or maintenance of, or litigation involving the repair,restoration, replacement, or maintenance of, major componentswhich the association is obligated to repair, restore, replace, ormaintain and for which the reserve fund was established.

(2) However, the board may authorize the temporary transfer ofmoney from a reserve fund to the association’s general operatingfund to meet short-term cash-flow requirements or other expenses,provided the board has made a written finding, recorded in theboard’s minutes, explaining the reasons that the transfer is needed,and describing when and how the money will be repaid to thereserve fund. The transferred funds shall be restored to the reservefund within one year of the date of the initial transfer, except thatthe board may, upon making a finding supported by documentationthat a temporary delay would be in the best interests of thecommon interest development, temporarily delay the restoration.The board shall exercise prudent fiscal management in maintainingthe integrity of the reserve account, and shall, if necessary, levy aspecial assessment to recover the full amount of the expendedfunds within the time limits required by this section. This specialassessment is subject to the limitation imposed by Section 1366.The board may, at its discretion, extend the date the payment onthe special assessment is due. Any extension shall not prevent theboard from pursuing any legal remedy to enforce the collection ofan unpaid special assessment.

(d) When the decision is made to use reserve funds or totemporarily transfer money from the reserve fund to pay forlitigation, the association shall notify the members of theassociation of that decision in the next available mailing to allmembers pursuant to Section 5016 of the Corporations Code, andof the availability of an accounting of those expenses. Unless thegoverning documents impose more stringent standards, theassociation shall make an accounting of expenses related to thelitigation on at least a quarterly basis. The accounting shall bemade available for inspection by members of the association at theassociation’s office.

(e) At least once every three years the board of directors shallcause to be conducted a reasonably competent and diligent visualinspection of the accessible areas of the major components whichthe association is obligated to repair, replace, restore, or maintainas part of a study of the reserve account requirements of the


common interest development if the current replacement value ofthe major components is equal to or greater than one-half of thegross budget of the association which excludes the association’sreserve account for that period. The board shall review this studyannually and shall consider and implement necessary adjustmentsto the board’s analysis of the reserve account requirements as aresult of that review.

The study required by this subdivision shall at a minimuminclude:

(1) Identification of the major components which the associationis obligated to repair, replace, restore, or maintain which, as of thedate of the study, have a remaining useful life of less than 30 years.

(2) Identification of the probable remaining useful life of thecomponents identified in paragraph (1) as of the date of the study.

(3) An estimate of the cost of repair, replacement, restoration, ormaintenance of the components identified in paragraph (1) duringand at the end of their useful life.

(4) An estimate of the total annual contribution necessary todefray the cost to repair, replace, restore, or maintain thecomponents identified in paragraph (1) during and at the end oftheir useful life, after subtracting total reserve funds as of the dateof the study.

(f) As used in this section, “reserve accounts” means both of thefollowing:

(1) Moneys that the association’s board of directors hasidentified for use to defray the future repair or replacement of, oradditions to, those major components which the association isobligated to maintain.

(2) The funds received and not yet expended or disposed fromeither a compensatory damage award or settlement to anassociation from any person or entity for injuries to property, realor personal, arising from any construction or design defects. Thesefunds shall be separately itemized from funds described inparagraph (1).

(g) As used in this section, “reserve account requirements”means the estimated funds which the association’s board ofdirectors has determined are required to be available at a specifiedpoint in time to repair, replace, or restore those major componentswhich the association is obligated to maintain.


(h) This section does not apply to an association that does nothave a “common area” as defined in Section 1351.

Article 3. Insurance

1365.7. (a) A volunteer officer or volunteer director of anassociation, as defined in subdivision (a) of Section 1351, whichmanages a common interest development that is exclusivelyresidential, shall not be personally liable in excess of the coverageof insurance specified in paragraph (4) to any person who suffersinjury, including, but not limited to, bodily injury, emotionaldistress, wrongful death, or property damage or loss as a result ofthe tortious act or omission of the volunteer officer or volunteerdirector if all of the following criteria are met:

(1) The act or omission was performed within the scope of theofficer’s or director’s association duties.

(2) The act or omission was performed in good faith.(3) The act or omission was not willful, wanton, or grossly

negligent.(4) The association maintained and had in effect at the time the

act or omission occurred and at the time a claim is made one ormore policies of insurance which shall include coverage for (A)general liability of the association and (B) individual liability ofofficers and directors of the association for negligent acts oromissions in that capacity; provided, that both types of coverageare in the following minimum amount:

(A) At least five hundred thousand dollars ($500,000) if thecommon interest development consists of 100 or fewer separateinterests.

(B) At least one million dollars ($1,000,000) if the commoninterest development consists of more than 100 separate interests.

(b) The payment of actual expenses incurred by a director orofficer in the execution of the duties of that position does not affectthe director’s or officer’s status as a volunteer within the meaningof this section.

(c) An officer or director who at the time of the act or omissionwas a declarant, as defined in subdivision (g) of Section 1351, orwho received either direct or indirect compensation as an employeefrom the declarant, or from a financial institution that purchased aseparate interest, as defined in subdivision (l) of Section 1351, at a


judicial or nonjudicial foreclosure of a mortgage or deed of trust onreal property, is not a volunteer for the purposes of this section.

(d) Nothing in this section shall be construed to limit the liabilityof the association for its negligent act or omission or for anynegligent act or omission of an officer or director of theassociation.

(e) This section shall only apply to a volunteer officer or directorwho is a tenant of a separate interest in the common interestdevelopment or is an owner of no more than two separate interestsin the common interest development.

(f)(1) For purposes of paragraph (1) of subdivision (a), the scopeof the officer’s or director’s association duties shall include, butshall not be limited to, both of the following decisions:

(A) Whether to conduct an investigation of the common interestdevelopment for latent deficiencies prior to the expiration of theapplicable statute of limitations.

(B) Whether to commence a civil action against the builder fordefects in design or construction.

(2) It is the intent of the Legislature that this section clarify thescope of association duties to which the protections againstpersonal liability in this section apply. It is not the intent of theLegislature that these clarifications be construed to expand, orlimit, the fiduciary duties owed by the directors or officers.

1365.9. (a) It is the intent of the Legislature to offer civil liabilityprotection to owners of the separate interests in a common interestdevelopment that have common areas owned in tenancy-in-common if the association carries a certain level of prescribedinsurance that covers a cause of action in tort.

(b) Any cause of action in tort against any owner of a separateinterest arising solely by reason of an ownership interest as a tenantin common in the common area of a common interest developmentshall be brought only against the association and not against theindividual owners of the separate interests, as defined insubdivision (l) of Section 1351, if both of the insurancerequirements in paragraphs (1) and (2) are met:

(1) The association maintained and has in effect for this cause ofaction, one or more policies of insurance which include coveragefor general liability of the association.


(2) The coverage described in paragraph (1) is in the followingminimum amounts:

(A) At least two million dollars ($2,000,000) if the commoninterest development consists of 100 or fewer separate interests.

(B) At least three million dollars ($3,000,000) if the commoninterest development consists of more than 100 separate interests.

Article 4. Assessments

1366. (a) Except as provided in this section, the association shalllevy regular and special assessments sufficient to perform itsobligations under the governing documents and this title. However,annual increases in regular assessments for any fiscal year, asauthorized by subdivision (b), shall not be imposed unless theboard has complied with subdivision (a) of Section 1365 withrespect to that fiscal year, or has obtained the approval of owners,constituting a quorum, casting a majority of the votes at a meetingor election of the association conducted in accordance withChapter 5 (commencing with Section 7510) of Part 3 of Division 2of Title 1 of the Corporations Code and Section 7613 of theCorporations Code. For the purposes of this section, “quorum”means more than 50 percent of the owners of an association.

(b) Notwithstanding more restrictive limitations placed on theboard by the governing documents, the board of directors may notimpose a regular assessment that is more than 20 percent greaterthan the regular assessment for the association’s preceding fiscalyear or impose special assessments which in the aggregate exceed5 percent of the budgeted gross expenses of the association for thatfiscal year without the approval of owners, constituting a quorum,casting a majority of the votes at a meeting or election of theassociation conducted in accordance with Chapter 5 (commencingwith Section 7510) of Part 3 of Division 2 of Title 1 of theCorporations Code and Section 7613 of the Corporations Code.For the purposes of this section, quorum means more than 50percent of the owners of an association. This section does not limitassessment increases necessary for emergency situations. Forpurposes of this section, an emergency situation is any one of thefollowing:

(1) An extraordinary expense required by an order of a court.


(2) An extraordinary expense necessary to repair or maintain thecommon interest development or any part of it for which theassociation is responsible where a threat to personal safety on theproperty is discovered.

(3) An extraordinary expense necessary to repair or maintain thecommon interest development or any part of it for which theassociation is responsible that could not have been reasonablyforeseen by the board in preparing and distributing the pro formaoperating budget under Section 1365. However, prior to theimposition or collection of an assessment under this subdivision,the board shall pass a resolution containing written findings as tothe necessity of the extraordinary expense involved and why theexpense was not or could not have been reasonably foreseen in thebudgeting process, and the resolution shall be distributed to themembers with the notice of assessment.

(c) Regular assessments imposed or collected to perform theobligations of an association under the governing documents orthis title shall be exempt from execution by a judgment creditor ofthe association only to the extent necessary for the association toperform essential services, such as paying for utilities andinsurance. In determining the appropriateness of an exemption, acourt shall ensure that only essential services are protected underthis subdivision.

This exemption shall not apply to any consensual pledges, liens,or encumbrances that have been approved by the owners of anassociation, constituting a quorum, casting a majority of the votesat a meeting or election of the association, or to any state tax lien,or to any lien for labor or materials supplied to the common area.

(d) The association shall provide notice by first-class mail to theowners of the separate interests of any increase in the regular orspecial assessments of the association, not less than 30 nor morethan 60 days prior to the increased assessment becoming due.

(e) Regular and special assessments levied pursuant to thegoverning documents are delinquent 15 days after they becomedue, unless the declaration provides a longer time period, in whichcase the longer time period shall apply. If an assessment isdelinquent the association may recover all of the following:

(1) Reasonable costs incurred in collecting the delinquentassessment, including reasonable attorney’s fees.


(2) A late charge not exceeding 10 percent of the delinquentassessment or ten dollars ($10), whichever is greater, unless thedeclaration specifies a late charge in a smaller amount, in whichcase any late charge imposed shall not exceed the amount specifiedin the declaration.

(3) Interest on all sums imposed in accordance with this section,including the delinquent assessments, reasonable fees and costs ofcollection, and reasonable attorney’s fees, at an annual interest ratenot to exceed 12 percent, commencing 30 days after the assessmentbecomes due, unless the declaration specifies the recovery ofinterest at a rate of a lesser amount, in which case the lesser rate ofinterest shall apply.

(f) Associations are hereby exempted from interest-ratelimitations imposed by Article XV of the California Constitution,subject to the limitations of this section.

1366.1. An association shall not impose or collect an assessmentor fee that exceeds the amount necessary to defray the costs forwhich it is levied.

1366.2. (a) In order to facilitate the collection of regularassessments, special assessments, transfer fees, and similarcharges, the board of directors of any association is authorized torecord a statement or amended statement identifying relevantinformation for the association. This statement may include any orall of the following information:

(1) The name of the association as shown in the conditions,covenants, and restrictions or the current name of the association,if different.

(2) The name and address of a managing agent or treasurer of theassociation or other individual or entity authorized to receiveassessments and fees imposed by the association.

(3) A daytime telephone number of the authorized partyidentified in paragraph (2) if a telephone number is available.

(4) A list of separate interests subject to assessment by theassociation, showing the assessor’s parcel number or legaldescription, or both, of the separate interests.

(5) The recording information identifying the declaration ordeclarations of covenants, conditions, and restrictions governingthe association.


(6) If an amended statement is being recorded, the recordinginformation identifying the prior statement or statements which theamendment is superseding.

(b) The county recorder is authorized to charge a fee forrecording the document described in subdivision (a), which feeshall be based upon the number of pages in the document and therecorder’s per-page recording fee.

1366.3. (a) The exception for disputes related to associationassessments in subdivision (b) of Section 1354 shall not apply if, ina dispute between the owner of a separate interest and theassociation regarding the assessments imposed by the association,the owner of the separate interest chooses to pay in full to theassociation all of the charges listed in paragraphs (1) to (4),inclusive, and states by written notice that the amount is paid underprotest, and the written notice is mailed by certified mail not morethan 30 days from the recording of a notice of delinquentassessment in accordance with Section 1367 or 1367.1; and inthose instances, the association shall inform the owner that theowner may resolve the dispute through alternative disputeresolution as set forth in Section 1354, civil action, and any otherprocedures to resolve the dispute that may be available through theassociation.

(1) The amount of the assessment in dispute.(2) Late charges.(3) Interest.(4) All reasonable fees and costs associated with the preparation

and filing of a notice of delinquent assessment, including allmailing costs, and including reasonable attorney’s fees not toexceed four hundred twenty-five dollars ($425).

(b) The right of any owner of a separate interest to utilizealternative dispute resolution under this section may not beexercised more than two times in any single calendar year, and notmore than three times within any five calendar years. Nothingwithin this section shall preclude any owner of a separate interestand the association, upon mutual agreement, from entering intoalternative dispute resolution for a number of times in excess of thelimits set forth in this section. The owner of a separate interest mayrequest and be awarded through alternative dispute resolutionreasonable interest to be paid by the association on the total


amount paid under paragraphs (1) to (4), inclusive, of subdivision(a), if it is determined through alternative dispute resolution thatthe assessment levied by the association was not correctly levied.

1367. (a) A regular or special assessment and any late charges,reasonable costs of collection, and interest, as assessed inaccordance with Section 1366, shall be a debt of the owner of theseparate interest at the time the assessment or other sums arelevied. Before an association may place a lien upon the separateinterest of an owner to collect a debt which is past due under thissubdivision, the association shall notify the owner in writing bycertified mail of the fee and penalty procedures of the association,provide an itemized statement of the charges owed by the owner,including items on the statement which indicate the assessmentsowed, any late charges and the method of calculation, anyattorney’s fees, and the collection practices used by the association,including the right of the association to the reasonable costs ofcollection. In addition, any payments toward that debt shall first beapplied to the assessments owed, and only after the principal owedis paid in full shall the payments be applied to interest or collectionexpenses.

(b) The amount of the assessment, plus any costs of collection,late charges, and interest assessed in accordance with Section1366, shall be a lien on the owner’s interest in the common interestdevelopment from and after the time the association causes to berecorded with the county recorder of the county in which theseparate interest is located, a notice of delinquent assessment,which shall state the amount of the assessment and other sumsimposed in accordance with Section 1366, a legal description ofthe owner’s interest in the common interest development againstwhich the assessment and other sums are levied, the name of therecord owner of the owner’s interest in the common interestdevelopment against which the lien is imposed, and, in order forthe lien to be enforced by nonjudicial foreclosure as provided insubdivision (e) the name and address of the trustee authorized bythe association to enforce the lien by sale. The notice of delinquentassessment shall be signed by the person designated in thedeclaration or by the association for that purpose, or if no one isdesignated, by the president of the association, and mailed in themanner set forth in Section 2924b, to all record owners of the


owner’s interest in the common interest development no later than10 calendar days after recordation. Upon payment of the sumsspecified in the notice of delinquent assessment, the associationshall cause to be recorded a further notice stating the satisfactionand release of the lien thereof. A monetary penalty imposed by theassociation as a means of reimbursing the association for costsincurred by the association in the repair of damage to commonareas and facilities for which the member or the member’s guestsor tenants were responsible may become a lien against themember’s separate interest enforceable by the sale of the interestunder Sections 2924, 2924b, and 2924c, provided the authority toimpose a lien is set forth in the governing documents. It is theintent of the Legislature not to contravene Section 2792.26 of Title10 of the California Code of Regulations, as that section appearedon January 1, 1996, for associations of subdivisions that are beingsold under authority of a subdivision public report, pursuant to Part2 (commencing with Section 11000) of Division 4 of the Businessand Professions Code.

(c) Except as indicated in subdivision (b), a monetary penaltyimposed by the association as a disciplinary measure for failure ofa member to comply with the governing instruments, except for thelate payments, may not be characterized nor treated in thegoverning instruments as an assessment which may become a lienagainst the member’s subdivision interest enforceable by the saleof the interest under Sections 2924, 2924b, and 2924c.

(d) A lien created pursuant to subdivision (b) shall be prior to allother liens recorded subsequent to the notice of assessment, exceptthat the declaration may provide for the subordination thereof toany other liens and encumbrances.

(e) After the expiration of 30 days following the recording of alien created pursuant to subdivision (b), the lien may be enforcedin any manner permitted by law, including sale by the court, saleby the trustee designated in the notice of delinquent assessment, orsale by a trustee substituted pursuant to Section 2934a. Any sale bythe trustee shall be conducted in accordance with the provisions ofSections 2924, 2924b, and 2924c applicable to the exercise ofpowers of sale in mortgages and deeds of trusts.

(f) Nothing in this section or in subdivision (a) of Section 726 ofthe Code of Civil Procedure prohibits actions against the owner ofa separate interest to recover sums for which a lien is created


pursuant to this section or prohibits an association from taking adeed in lieu of foreclosure.

(g) This section only applies to liens recorded on or after January1, 1986 and prior to January 1, 2003.

1367.1. (a) A regular or special assessment and any late charges,reasonable fees and costs of collection, reasonable attorney’s fees,if any, and interest, if any, as determined in accordance withSection 1366, shall be a debt of the owner of the separate interestat the time the assessment or other sums are levied. At least 30days prior to recording a lien upon the separate interest of theowner of record to collect a debt that is past due under thissubdivision, the association shall notify the owner of record inwriting by certified mail of the following:

(1) A general description of the collection and lien enforcementprocedures of the association and the method of calculation of theamount, a statement that the owner of the separate interest has theright to inspect the association records, pursuant to Section 8333 ofthe Corporations Code, and the following statement in 14-pointboldface type, if printed, or in capital letters, if typed:“IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST ISPLACED IN FORECLOSURE BECAUSE YOU ARE BEHINDIN YOUR ASSESSMENTS, IT MAY BE SOLD WITHOUTCOURT ACTION”.

(2) An itemized statement of the charges owed by the owner,including items on the statement which indicate the amount of anydelinquent assessments, the fees and reasonable costs of collection,reasonable attorney’s fees, any late charges, and interest, if any.

(3) A statement that the owner shall not be liable to pay thecharges, interest, and costs of collection, if it is determined theassessment was paid on time to the association.

(4) The right to request a meeting with the board as provided bysubdivision (c).

(b) Any payments made by the owner of a separate interesttoward the debt set forth, as required in subdivision (a), shall firstbe applied to the assessments owed, and, only after the assessmentsowed are paid in full shall the payments be applied to the fees andcosts of collection, attorney’s fees, late charges, or interest. Whenan owner makes a payment, the owner may request a receipt andthe association shall provide it. The receipt shall indicate the date


of payment and the person who received it. The association shallprovide a mailing address for overnight payment of assessments.

(c)(1) An owner may dispute the debt noticed pursuant tosubdivision (a) by submitting to the board a written explanation ofthe reasons for his or her dispute. The board shall respond inwriting to the owner within 15 days of the date of the postmark ofthe explanation, if the explanation is mailed within 15 days of thepostmark of the notice.

(2) An owner, other than an owner of any interest that isdescribed in Section 11003.5 of the Business and ProfessionsCode, may submit a written request to meet with the board todiscuss a payment plan for the debt noticed pursuant to subdivision(a). The association shall provide the owners the standards forpayment plans, if any exist. The board shall meet with the owner inexecutive session within 45 days of the postmark of the request, ifthe request is mailed within 15 days of the date of the postmark ofthe notice, unless there is no regularly scheduled board meetingwithin that period, in which case the board may designate acommittee of one or more members to meet with the owner.

(d) The amount of the assessment, plus any costs of collection,late charges, and interest assessed in accordance with Section1366, shall be a lien on the owner’s interest in the common interestdevelopment from and after the time the association causes to berecorded with the county recorder of the county in which theseparate interest is located, a notice of delinquent assessment,which shall state the amount of the assessment and other sumsimposed in accordance with Section 1366, a legal description ofthe owner’s interest in the common interest development againstwhich the assessment and other sums are levied, the name of therecord owner of the owner’s interest in the common interestdevelopment against which the lien is imposed. In order for thelien to be enforced by nonjudicial foreclosure as provided insubdivision (g), the notice of delinquent assessment shall state thename and address of the trustee authorized by the association toenforce the lien by sale. The notice of delinquent assessment shallbe signed by the person designated in the declaration or by theassociation for that purpose, or if no one is designated, by thepresident of the association, and mailed in the manner set forth inSection 2924b, to all record owners of the owner’s interest in thecommon interest development no later than 10 calendar days after


recordation. Within 21 days of the payment of the sums specifiedin the notice of delinquent assessment, the association shall recordor cause to be recorded in the office of the county recorder inwhich the notice of delinquent assessment is recorded a lien releaseor notice of rescission and provide the owner of the separateinterest a copy of the lien release or notice that the delinquentassessment has been satisfied. A monetary charge imposed by theassociation as a means of reimbursing the association for costsincurred by the association in the repair of damage to commonareas and facilities for which the member or the member’s guestsor tenants were responsible may become a lien against themember’s separate interest enforceable by the sale of the interestunder Sections 2924, 2924b, and 2924c, provided the authority toimpose a lien is set forth in the governing documents. It is theintent of the Legislature not to contravene Section 2792.26 of Title10 of the California Code of Regulations, as that section appearedon January 1, 1996, for associations of subdivisions that are beingsold under authority of a subdivision public report, pursuant to Part2 (commencing with Section 11000) of Division 4 of the Businessand Professions Code.

(e) Except as indicated in subdivision (d), a monetary penaltyimposed by the association as a disciplinary measure for failure ofa member to comply with the governing instruments, except for thelate payments, may not be characterized nor treated in thegoverning instruments as an assessment that may become a lienagainst the member’s subdivision separate interest enforceable bythe sale of the interest under Sections 2924, 2924b, and 2924c.

(f) A lien created pursuant to subdivision (d) shall be prior to allother liens recorded subsequent to the notice of assessment, exceptthat the declaration may provide for the subordination thereof toany other liens and encumbrances.

(g) An association may not voluntarily assign or pledge theassociation’s right to collect payments or assessments, or toenforce or foreclose a lien to a third party, except when theassignment or pledge is made to a financial institution or lenderchartered or licensed under federal or state law, when acting withinthe scope of that charter or license, as security for a loan obtainedby the association; however, the foregoing provision may notrestrict the right or ability of an association to assign any unpaidobligations of a former member to a third party for purposes of


collection. Subject to the limitations of this subdivision, after theexpiration of 30 days following the recording of a lien createdpursuant to subdivision (d), the lien may be enforced in anymanner permitted by law, including sale by the court, sale by thetrustee designated in the notice of delinquent assessment, or sale bya trustee substituted pursuant to Section 2934a. Any sale by thetrustee shall be conducted in accordance with Sections 2924,2924b, and 2924c applicable to the exercise of powers of sale inmortgages and deeds of trusts. The fees of a trustee may not exceedthe amounts prescribed in Sections 2924c and 2924d.

(h) Nothing in this section or in subdivision (a) of Section 726 ofthe Code of Civil Procedure prohibits actions against the owner ofa separate interest to recover sums for which a lien is createdpursuant to this section or prohibits an association from taking adeed in lieu of foreclosure.

(i) If it is determined that a lien previously recorded against theseparate interest was recorded in error, the party who recorded thelien shall, within 21 calendar days, record or cause to be recordedin the office of the county recorder in which the notice ofdelinquent assessment is recorded a lien release or notice ofrescission and provide the owner of the separate interest with adeclaration that the lien filing or recording was in error and a copyof the lien release or notice of rescission.

(j)(1) An association that fails to comply with the procedures setforth in this section shall, prior to recording a lien, recommence therequired notice process.

(2) Any costs associated with recommencing the notice processshall be borne by the association and not by the owner of a separateinterest.

(k) This section only applies to liens recorded on or after January1, 2003.

CHAPTER 6. TRANSFER OF OWNERSHIPINTERESTS

1368. (a) The owner of a separate interest, other than an ownersubject to the requirements of Section 11018.6 of the Business andProfessions Code, shall, as soon as practicable before transfer oftitle to the separate interest or execution of a real property sales


contract therefor, as defined in Section 2985, provide the followingto the prospective purchaser:

(1) A copy of the governing documents of the common interestdevelopment, including a copy of the association’s articles ofincorporation, or, if not incorporated, a statement in writing froman authorized representative of the association that the associationis not incorporated.

(2) If there is a restriction in the governing documents limitingthe occupancy, residency, or use of a separate interest on the basisof age in a manner different from that provided in Section 51.3, astatement that the restriction is only enforceable to the extentpermitted by Section 51.3 and a statement specifying theapplicable provisions of Section 51.3.

(3) A copy of the most recent documents distributed pursuant toSection 1365.

(4) A true statement in writing obtained from an authorizedrepresentative of the association as to the amount of theassociation’s current regular and special assessments and fees, anyassessments levied upon the owner’s interest in the commoninterest development that are unpaid on the date of the statement,and any monetary fines or penalties levied upon the owner’sinterest and unpaid on the date of the statement. The statementobtained from an authorized representative shall also include trueinformation on late charges, interest, and costs of collection which,as of the date of the statement, are or may be made a lien upon theowner’s interest in a common interest development pursuant toSection 1367 or 1367.1.

(5) A copy or a summary of any notice previously sent to theowner pursuant to subdivision (h) of Section 1363 that sets forthany alleged violation of the governing documents that remainsunresolved at the time of the request. The notice shall not bedeemed a waiver of the association’s right to enforce the governingdocuments against the owner or the prospective purchaser of theseparate interest with respect to any violation. This paragraph shallnot be construed to require an association to inspect an owner’sseparate interest.

(6) A copy of the preliminary list of defects provided to eachmember of the association pursuant to Section 1375, unless theassociation and the builder subsequently enter into a settlementagreement or otherwise resolve the matter and the association


complies with Section 1375.1. Disclosure of the preliminary list ofdefects pursuant to this paragraph shall not waive any privilegeattached to the document. The preliminary list of defects shall alsoinclude a statement that a final determination as to whether the listof defects is accurate and complete has not been made.

(7) A copy of the latest information provided for in Section1375.1.

(8) Any change in the association’s current regular and specialassessments and fees which have been approved by theassociation’s board of directors, but have not become due andpayable as of the date disclosure is provided pursuant to thissubdivision.

(b) Upon written request, an association shall, within 10 days ofthe mailing or delivery of the request, provide the owner of aseparate interest with a copy of the requested items specified inparagraphs (1) to (8), inclusive, of subdivision (a). The associationmay charge a fee for this service, which shall not exceed theassociation’s reasonable cost to prepare and reproduce therequested items.

(c) An association shall not impose or collect any assessment,penalty, or fee in connection with a transfer of title or any otherinterest except the association’s actual costs to change its recordsand that authorized by subdivision (b).

(d) Any person or entity who willfully violates this section shallbe liable to the purchaser of a separate interest which is subject tothis section for actual damages occasioned thereby and, in addition,shall pay a civil penalty in an amount not to exceed five hundreddollars ($500). In an action to enforce this liability, the prevailingparty shall be awarded reasonable attorneys’ fees.

(e) Nothing in this section affects the validity of title to realproperty transferred in violation of this section.

(f) In addition to the requirements of this section, an ownertransferring title to a separate interest shall comply with applicablerequirements of Sections 1133 and 1134.

1368.1. (a) Any rule or regulation of an association thatarbitrarily or unreasonably restricts an owner’s ability to market hisor her interest in a common interest development is void.

(b) No association may adopt, enforce, or otherwise impose anyrule or regulation that does either of the following:


(1) Imposes an assessment or fee in connection with themarketing of an owner’s interest in an amount that exceeds theassociation’s actual or direct costs. That assessment or fee shall bedeemed to violate the limitation set forth in Section 1366.1.

(2) Establishes an exclusive relationship with a real estate brokerthrough which the sale or marketing of interests in thedevelopment is required to occur. The limitation set forth in thisparagraph does not apply to the sale or marketing of separateinterests owned by the association or to the sale or marketing ofcommon areas by the association.

(c) For purposes of this section, “market” and “marketing” meanlisting, advertising, or obtaining or providing access to show theowner’s interest in the development.

(d) This section does not apply to rules or regulations madepursuant to Section 712 or 713 regarding real estate signs.

CHAPTER 7. CIVIL ACTIONS AND LIENS

1368.4. (a) Not later than 30 days prior to the filing of any civilaction by the association against the declarant or other developer ofa common interest development for alleged damage to the commonareas, alleged damage to the separate interests that the associationis obligated to maintain or repair, or alleged damage to the separateinterests that arises out of, or is integrally related to, damage to thecommon areas or separate interests that the association is obligatedto maintain or repair, the board of directors of the association shalla provide written notice to each member of the association whoappears on the records of the association when the notice isprovided. This notice shall specify all of the following:

(1) That a meeting will take place to discuss problems that maylead to the filing of a civil action.

(2) The options, including civil actions, that are available toaddress the problems.

(3) The time and place of this meeting.(b) Notwithstanding subdivision (a), if the association has reason

to believe that the applicable statute of limitations will expirebefore the association files the civil action, the association maygive the notice, as described above, within 30 days after the filingof the action.


1369. In a condominium project, no labor performed or servicesor materials furnished with the consent of, or at the request of, anowner in the condominium project or his or her agent or his or hercontractor shall be the basis for the filing of a lien against any otherproperty of any other owner in the condominium project unlessthat other owner has expressly consented to or requested theperformance of the labor or furnishing of the materials or services.However, express consent shall be deemed to have been given bythe owner of any condominium in the case of emergency repairsthereto. Labor performed or services or materials furnished for thecommon areas, if duly authorized by the association, shall bedeemed to be performed or furnished with the express consent ofeach condominium owner. The owner of any condominium mayremove his or her condominium from a lien against two or morecondominiums or any part thereof by payment to the holder of thelien of the fraction of the total sum secured by the lien which isattributable to his or her condominium.

CHAPTER 8. CONSTRUCTION OFINSTRUMENTS AND ZONING

1370. Any deed, declaration, or condominium plan for acommon interest development shall be liberally construed tofacilitate the operation of the common interest development, andits provisions shall be presumed to be independent and severable.Nothing in Article 3 (commencing with Section 715) of Chapter 2of Title 2 of Part 1 of this division shall operate to invalidate anyprovisions of the governing documents of a common interestdevelopment.

1371. In interpreting deeds and condominium plans, the existingphysical boundaries of a unit in a condominium project, when theboundaries of the unit are contained within a building, or of a unitreconstructed in substantial accordance with the original plansthereof, shall be conclusively presumed to be its boundaries ratherthan the metes and bounds expressed in the deed or condominiumplan, if any exists, regardless of settling or lateral movement of thebuilding and regardless of minor variance between boundariesshown on the plan or in the deed and those of the building.


1372. Unless a contrary intent is clearly expressed, local zoningordinances shall be construed to treat like structures, lots, parcels,areas, or spaces in like manner regardless of whether the commoninterest development is a community apartment project,condominium project, planned development, or stock cooperative.

1373. Sections 1356, 1365, 1365.5, 1366.1, and 1368, andsubdivision (b) of Section 1363, and subdivision (b) of Section1366 are not applicable to common interest developments that areexpressly zoned as industrial developments and limited in use toindustrial purposes or expressly zoned as commercialdevelopments and limited in use to commercial purposes.

The Legislature finds that those aforementioned provisions maybe appropriate to protect purchasers in residential common interestdevelopments, however, the provisions are not necessary to protectpurchasers in commercial or industrial developments since theapplication of those provisions results in unnecessary burdens andcosts for these types of developments.

1374. Nothing in this title may be construed to apply to adevelopment wherein there does not exist a common area asdefined in subdivision (b) of Section 1351, nor may this title beconstrued to confer standing pursuant to Section 383 of the Codeof Civil Procedure to an association created for the purpose ofmanaging a development wherein there does not exist a commonarea.

This section is declaratory of existing law.

CHAPTER 9. CONSTRUCTION DEFECTLITIGATION

1375. (a) Before an association files a complaint for damagesagainst a builder, developer, or general contractor (“respondent”)of a common interest development based upon a claim for defectsin the design or construction of the common interest development,all of the requirements of this section shall be satisfied with respectto the builder, developer, or general contractor.

(b) The association shall serve upon the respondent a “Notice ofCommencement of Legal Proceedings.” The notice shall be servedby certified mail to the registered agent of the respondent, or ifthere is no registered agent, then to any officer of the respondent. If


there are no current officers of the respondent, service shall beupon the person or entity otherwise authorized by law to receiveservice of process. Service upon the general contractor shall besufficient to initiate the process set forth in this section with regardto any builder or developer, if the builder or developer is notamenable to service of process by the foregoing methods. Thisnotice shall toll all applicable statutes of limitation and repose,whether contractual or statutory, by and against all potentiallyresponsible parties, regardless of whether they were named in thenotice, including claims for indemnity applicable to the claim forthe period set forth in subdivision (c). The notice shall include allof the following:

(1) The name and location of the project.(2) An initial list of defects sufficient to apprise the respondent

of the general nature of the defects at issue.(3) A description of the results of the defects, if known.(4) A summary of the results of a survey or questionnaire

distributed to homeowners to determine the nature and extent ofdefects, if a survey has been conducted or a questionnaire has beendistributed.

(5) Either a summary of the results of testing conducted todetermine the nature and extent of defects or the actual test results,if that testing has been conducted.

(c) Service of the notice shall commence a period, not to exceed180 days, during which the association, the respondent, and allother participating parties shall try to resolve the dispute throughthe processes set forth in this section. This 180-day period may beextended for one additional period, not to exceed 180 days, onlyupon the mutual agreement of the association, the respondent, andany parties not deemed peripheral pursuant to paragraph (3) ofsubdivision (e). Any extensions beyond the first extension shallrequire the agreement of all participating parties. Unless extended,the dispute resolution process prescribed by this section shall bedeemed completed. All extensions shall continue the tolling perioddescribed in subdivision (b).

(d) Within 25 days of the date the association serves the Noticeof Commencement of Legal Proceedings, the respondent mayrequest in writing to meet and confer with the board of directors ofthe association. Unless the respondent and the associationotherwise agree, there shall be not more than one meeting, which


shall take place no later than 10 days from the date of therespondent’s written request, at a mutually agreeable time andplace. The meeting shall be subject to subdivision (b) of Section1363.05. The discussions at the meeting are privilegedcommunications and are not admissible in evidence in any civilaction, unless the association and the respondent consent in writingto their admission.

(e) Upon receipt of the notice, the respondent shall, within 60days, comply with the following:

(1) The respondent shall provide the association with access to,for inspection and copying of, all plans and specifications,subcontracts, and other construction files for the project that arereasonably calculated to lead to the discovery of admissibleevidence regarding the defects claimed. The association shallprovide the respondent with access to, for inspection and copyingof, all files reasonably calculated to lead to the discovery ofadmissible evidence regarding the defects claimed, including allreserve studies, maintenance records and any surveyquestionnaires, or results of testing to determine the nature andextent of defects. To the extent any of the above documents arewithheld based on privilege, a privilege log shall be prepared andsubmitted to all other parties. All other potentially responsibleparties shall have the same rights as the respondent regarding theproduction of documents upon receipt of written notice of theclaim, and shall produce all relevant documents within 60 days ofreceipt of the notice of the claim.

(2) The respondent shall provide written notice by certified mailto all subcontractors, design professionals, their insurers, and theinsurers of any additional insured whose identities are known tothe respondent or readily ascertainable by review of the projectfiles or other similar sources and whose potential responsibilityappears on the face of the notice. This notice to subcontractors,design professionals, and insurers shall include a copy of theNotice of Commencement of Legal Proceedings, and shall specifythe date and manner by which the parties shall meet and confer toselect a dispute resolution facilitator pursuant to paragraph (1) ofsubdivision (f), advise the recipient of its obligation to participatein the meet and confer or serve a written acknowledgment ofreceipt regarding this notice, advise the recipient that it will waiveany challenge to selection of the dispute resolution facilitator if it


elects not to participate in the meet and confer, advise the recipientthat it may be bound by any settlement reached pursuant tosubdivision (d) of Section 1375.05, advise the recipient that it maybe deemed to have waived rights to conduct inspection and testingpursuant to subdivision (c) of Section 1375.05, advise the recipientthat it may seek the assistance of an attorney, and advise therecipient that it should contact its insurer, if any. Anysubcontractor or design professional, or insurer for thatsubcontractor, design professional, or additional insured, whoreceives written notice from the respondent regarding the meet andconfer shall, prior to the meet and confer, serve on the respondent awritten acknowledgment of receipt. That subcontractor or designprofessional shall, within 10 days of service of the writtenacknowledgment of receipt, provide to the association and therespondent a Statement of Insurance that includes both of thefollowing:

(A) The names, addresses, and contact persons, if known, of allinsurance carriers, whether primary or excess and regardless ofwhether a deductible or self-insured retention applies, whosepolicies were in effect from the commencement of construction ofthe subject project to the present and which potentially cover thesubject claims.

(B) The applicable policy numbers for each policy of insuranceprovided.

(3) Any subcontractor or design professional, or insurer for thatsubcontractor, design professional, or additional insured, who sochooses, may, at any time, make a written request to the disputeresolution facilitator for designation as a peripheral party. Thatrequest shall be served contemporaneously on the association andthe respondent. If no objection to that designation is receivedwithin 15 days, or upon rejection of that objection, the disputeresolution facilitator shall designate that subcontractor or designprofessional as a peripheral party, and shall thereafter seek to limitthe attendance of that subcontractor or design professional only tothose dispute resolution sessions deemed peripheral party sessionsor to those sessions during which the dispute resolution facilitatorbelieves settlement as to peripheral parties may be finalized.Nothing in this subdivision shall preclude a party who has beendesignated a peripheral party from being reclassified as anonperipheral party, nor shall this subdivision preclude a party


designated as a nonperipheral party from being reclassified as aperipheral party after notice to all parties and an opportunity toobject. For purposes of this subdivision, a peripheral party is aparty having total claimed exposure of less than twenty-fivethousand dollars ($25,000).

(f)(1) Within 20 days of sending the notice set forth in paragraph(2) of subdivision (e), the association, respondent, subcontractors,design professionals, and their insurers who have been sent anotice as described in paragraph (2) of subdivision (e) shall meetand confer in an effort to select a dispute resolution facilitator topreside over the mandatory dispute resolution process prescribedby this section. Any subcontractor or design professional who hasbeen given timely notice of this meeting but who does notparticipate, waives any challenge he or she may have as to theselection of the dispute resolution facilitator. The role of thedispute resolution facilitator is to attempt to resolve the conflict ina fair manner. The dispute resolution facilitator shall besufficiently knowledgeable in the subject matter and be able todevote sufficient time to the case. The dispute resolution facilitatorshall not be required to reside in or have an office in the county inwhich the project is located. The dispute resolution facilitator andthe participating parties shall agree to a date, time, and location tohold a case management meeting of all parties and the disputeresolution facilitator, to discuss the claims being asserted and thescheduling of events under this section. The case managementmeeting with the dispute resolution facilitator shall be held within100 days of service of the Notice of Commencement of LegalProceedings at a location in the county where the project is located.Written notice of the case management meeting with the disputeresolution facilitator shall be sent by the respondent to theassociation, subcontractors and design professionals, and theirinsurers who are known to the respondent to be on notice of theclaim, no later than 10 days prior to the case management meeting,and shall specify its date, time, and location. The dispute resolutionfacilitator in consultation with the respondent shall maintain acontact list of the participating parties.

(2) No later than 10 days prior to the case management meeting,the dispute resolution facilitator shall disclose to the parties allmatters that could cause a person aware of the facts to reasonablyentertain a doubt that the proposed dispute resolution facilitator


would be able to resolve the conflict in a fair manner. Thefacilitator’s disclosure shall include the existence of any groundspecified in Section 170.1 of the Code of Civil Procedure fordisqualification of a judge, any attorney-client relationship thefacilitator has or had with any party or lawyer for a party to thedispute resolution process, and any professional or significantpersonal relationship the facilitator or his or her spouse or minorchild living in the household has or had with any party to thedispute resolution process. The disclosure shall also be provided toany subsequently noticed subcontractor or design professionalwithin 10 days of the notice.

(3) A dispute resolution facilitator shall be disqualified by thecourt if he or she fails to comply with this paragraph and any partyto the dispute resolution process serves a notice of disqualificationprior to the case management meeting. If the dispute resolutionfacilitator complies with this paragraph, he or she shall bedisqualified by the court on the basis of the disclosure if any partyto the dispute resolution process serves a notice of disqualificationprior to the case management meeting.

(4) If the parties cannot mutually agree to a dispute resolutionfacilitator, then each party shall submit a list of three disputeresolution facilitators. Each party may then strike one nomineefrom the other parties’ list, and petition the court, pursuant to theprocedure described in subdivisions (n) and (o), for final selectionof the dispute resolution facilitator. The court may issue an orderfor final selection of the dispute resolution facilitator pursuant tothis paragraph.

(5) Any subcontractor or design professional who receives noticeof the association’s claim without having previously receivedtimely notice of the meet and confer to select the dispute resolutionfacilitator shall be notified by the respondent regarding the name,address, and telephone number of the dispute resolution facilitator.Any such subcontractor or design professional may serve upon theparties and the dispute resolution facilitator a written objection tothe dispute resolution facilitator within 15 days of receiving noticeof the claim. Within seven days after service of this objection, thesubcontractor or design professional may petition the superiorcourt to replace the dispute resolution facilitator. The court mayreplace the dispute resolution facilitator only upon a showing ofgood cause, liberally construed. Failure to satisfy the deadlines set


forth in this subdivision shall constitute a waiver of the right tochallenge the dispute resolution facilitator.

(6) The costs of the dispute resolution facilitator shall beapportioned in the following manner: one-third to be paid by theassociation; one-third to be paid by the respondent; and one-thirdto be paid by the subcontractors and design professionals, asallocated among them by the dispute resolution facilitator. Thecosts of the dispute resolution facilitator shall be recoverable bythe prevailing party in any subsequent litigation pursuant toSection 1032 of the Code of Civil Procedure, provided howeverthat any nonsettling party may, prior to the filing of the complaint,petition the facilitator to reallocate the costs of the disputeresolution facilitator as they apply to any nonsettling party. Thedetermination of the dispute resolution facilitator with respect tothe allocation of these costs shall be binding in any subsequentlitigation. The dispute resolution facilitator shall take into accountall relevant factors and equities between all parties in the disputeresolution process when reallocating costs.

(7) In the event the dispute resolution facilitator is replaced atany time, the case management statement created pursuant tosubdivision (h) shall remain in full force and effect.

(8) The dispute resolution facilitator shall be empowered toenforce all provisions of this section.

(g)(1) No later than the case management meeting, the partiesshall begin to generate a data compilation showing the followinginformation regarding the alleged defects at issue:

(A) The scope of the work performed by each potentiallyresponsible subcontractor.

(B) The tract or phase number in which each subcontractorprovided goods or services, or both.

(C) The units, either by address, unit number, or lot number, atwhich each subcontractor provided goods or services, or both.

(2) This data compilation shall be updated as needed to reflectadditional information. Each party attending the case managementmeeting, and any subsequent meeting pursuant to this section, shallprovide all information available to that party relevant to this datacompilation.

(h) At the case management meeting, the parties shall, with theassistance of the dispute resolution facilitator, reach agreement ona case management statement, which shall set forth all of the


elements set forth in paragraphs (1) to (8), inclusive, except thatthe parties may dispense with one or more of these elements if theyagree that it is appropriate to do so. The case managementstatement shall provide that the following elements shall take placein the following order:

(1) Establishment of a document depository, located in thecounty where the project is located, for deposit of documents,defect lists, demands, and other information provided for under thissection. All documents exchanged by the parties and all documentscreated pursuant to this subdivision shall be deposited in thedocument depository, which shall be available to all partiesthroughout the prefiling dispute resolution process and in anysubsequent litigation. When any document is deposited in thedocument depository, the party depositing the document shallprovide written notice identifying the document to all other parties.The costs of maintaining the document depository shall beapportioned among the parties in the same manner as the costs ofthe dispute resolution facilitator.

(2) Provision of a more detailed list of defects by the associationto the respondent after the association completes a visualinspection of the project. This list of defects shall providesufficient detail for the respondent to ensure that all potentiallyresponsible subcontractors and design professionals are providedwith notice of the dispute resolution process. If not alreadycompleted prior to the case management meeting, the Notice ofCommencement of Legal Proceedings shall be served by therespondent on all additional subcontractors and designprofessionals whose potential responsibility appears on the face ofthe more detailed list of defects within seven days of receipt of themore detailed list. The respondent shall serve a copy of the casemanagement statement, including the name, address, and telephonenumber of the dispute resolution facilitator, to all the potentiallyresponsible subcontractors and design professionals at the sametime.

(3) Nonintrusive visual inspection of the project by therespondent, subcontractors, and design professionals.

(4) Invasive testing conducted by the association, if theassociation deems appropriate. All parties may observe andphotograph any testing conducted by the association pursuant to


this paragraph, but may not take samples or direct testing unless,by mutual agreement, costs of testing are shared by the parties.

(5) Provision by the association of a comprehensive demandwhich provides sufficient detail for the parties to engage inmeaningful dispute resolution as contemplated under this section.

(6) Invasive testing conducted by the respondent, subcontractors,and design professionals, if they deem appropriate.

(7) Allowance for modification of the demand by the associationif new issues arise during the testing conducted by the respondent,subcontractor, or design professionals.

(8) Facilitated dispute resolution of the claim, with all parties,including peripheral parties, as appropriate, and insurers, if any,present and having settlement authority. The dispute resolutionfacilitators shall endeavor to set specific times for the attendance ofspecific parties at dispute resolution sessions. If the disputeresolution facilitator does not set specific times for the attendanceof parties at dispute resolution sessions, the dispute resolutionfacilitator shall permit those parties to participate in disputeresolution sessions by telephone.

(i) In addition to the foregoing elements of the case managementstatement described in subdivision (h), upon mutual agreement ofthe parties, the dispute resolution facilitator may include any or allof the following elements in a case management statement: theexchange of consultant or expert photographs; expertpresentations; expert meetings; or any other mechanism deemedappropriate by the parties in the interest of resolving the dispute.

(j) The dispute resolution facilitator, with the guidance of theparties, shall at the time the case management statement isestablished, set deadlines for the occurrence of each event set forthin the case management statement, taking into account such factorsas the size and complexity of the case, and the requirement of thissection that this dispute resolution process not exceed 180 daysabsent agreement of the parties to an extension of time.

(k)(1)(A) At a time to be determined by the dispute resolutionfacilitator, the respondent may submit to the association all of thefollowing:

(i) A request to meet with the board to discuss a writtensettlement offer.

(ii) A written settlement offer, and a concise explanation of thereasons for the terms of the offer.


(iii) A statement that the respondent has access to sufficientfunds to satisfy the conditions of the settlement offer.

(iv) A summary of the results of testing conducted for thepurposes of determining the nature and extent of defects, if thistesting has been conducted, unless the association provided therespondent with actual test results.

(B) If the respondent does not timely submit the items requiredby this subdivision, the association shall be relieved of any furtherobligation to satisfy the requirements of this subdivision only.

(C) No less than 10 days after the respondent submits the itemsrequired by this paragraph, the respondent and the board ofdirectors of the association shall meet and confer about therespondent’s settlement offer.

(D) If the association’s board of directors rejects a settlementoffer presented at the meeting held pursuant to this subdivision, theboard shall hold a meeting open to each member of the association.The meeting shall be held no less than 15 days before theassociation commences an action for damages against therespondent.

(E) No less than 15 days before this meeting is held, a writtennotice shall be sent to each member of the association specifyingall of the following:

(i) That a meeting will take place to discuss problems that maylead to the filing of a civil action, and the time and place of thismeeting.

(ii) The options that are available to address the problems,including the filing of a civil action and a statement of the variousalternatives that are reasonably foreseeable by the association topay for those options and whether these payments are expected tobe made from the use of reserve account funds or the imposition ofregular or special assessments, or emergency assessment increases.

(iii) The complete text of any written settlement offer, and aconcise explanation of the specific reasons for the terms of theoffer submitted to the board at the meeting held pursuant tosubdivision (d) that was received from the respondent.

(F) The respondent shall pay all expenses attributable to sendingthe settlement offer to all members of the association. Therespondent shall also pay the expense of holding the meeting, notto exceed three dollars ($3) per association member.


(G) The discussions at the meeting and the contents of the noticeand the items required to be specified in the notice pursuant toparagraph (E) are privileged communications and are notadmissible in evidence in any civil action, unless the associationconsents to their admission.

(H) No more than one request to meet and discuss a writtensettlement offer may be made by the respondent pursuant to thissubdivision.

(l) Except for the purpose of in camera review as provided insubdivision (c) of Section 1375.05, all defect lists and demands,communications, negotiations, and settlement offers made in thecourse of the prelitigation dispute resolution process provided bythis section shall be inadmissible pursuant to Sections 1119 to1124, inclusive, of the Evidence Code and all applicable decisionallaw. This inadmissibility shall not be extended to any otherdocuments or communications which would not otherwise bedeemed inadmissible.

(m) Any subcontractor or design professional may, at any time,petition the dispute resolution facilitator to release that party fromthe dispute resolution process upon a showing that thesubcontractor or design professional is not potentially responsiblefor the defect claims at issue. The petition shall be servedcontemporaneously on all other parties, who shall have 15 daysfrom the date of service to object. If a subcontractor or designprofessional is released, and it later appears to the disputeresolution facilitator that it may be a responsible party in light ofthe current defect list or demand, the respondent shall renotice theparty as provided by paragraph (2) of subdivision (e), provide acopy of the current defect list or demand, and direct the party toattend a dispute resolution session at a stated time and location. Aparty who subsequently appears after having been released by thedispute resolution facilitator shall not be prejudiced by its absencefrom the dispute resolution process as the result of having beenpreviously released by the dispute resolution facilitator.

(n) Any party may, at any time, petition the superior court in thecounty where the project is located, upon a showing of good cause,and the court may issue an order, for any of the following, or forappointment of a referee to resolve a dispute regarding any of thefollowing:


(1) To take a deposition of any party to the process, or subpoenaa third party for deposition or production of documents, which isnecessary to further prelitigation resolution of the dispute.

(2) To resolve any disputes concerning inspection, testing,production of documents, or exchange of information provided forunder this section.

(3) To resolve any disagreements relative to the timing orcontents of the case management statement.

(4) To authorize internal extensions of timeframes set forth in thecase management statement.

(5) To seek a determination that a settlement is a good faithsettlement pursuant to Section 877.6 of the Code of CivilProcedure and all related authorities. The page limitations andmeet and confer requirements specified in this section shall notapply to these motions, which may be made on shortened notice.Instead, these motions shall be subject to other applicable statelaw, rules of court, and local rules. A determination made by thecourt pursuant to this motion shall have the same force and effectas the determination of a postfiling application or motion for goodfaith settlement.

(6) To ensure compliance, on shortened notice, with theobligation to provide a Statement of Insurance pursuant toparagraph (2) of subdivision (e).

(7) For any other relief appropriate to the enforcement of theprovisions of this section, including the ordering of parties, andinsurers, if any, to the dispute resolution process with settlementauthority.

(o)(1) A petition filed pursuant to subdivision (n) shall be filed inthe superior court in the county in which the project is located. Thecourt shall hear and decide the petition within 10 days after filing.The petitioning party shall serve the petition on all parties,including the date, time, and location of the hearing no later thanfive business days prior to the hearing. Any responsive papers shallbe filed and served no later than three business days prior to thehearing. Any petition or response filed under this section shall beno more than three pages in length.

(2) All parties shall meet with the dispute resolution facilitator, ifone has been appointed and confer in person or by the telephoneprior to the filing of that petition to attempt to resolve the matterwithout requiring court intervention.


(p) As used in this section:(1) “Association” shall have the same meaning as defined in

subdivision (a) of Section 1351.(2) “Builder” means the declarant, as defined in subdivision (g)

of Section 1351.(3) “Common interest development” shall have the same

meaning as in subdivision (c) of Section 1351, except that it shallnot include developments or projects with less than 20 units.

(q) The alternative dispute resolution process and proceduresdescribed in this section shall have no application or legal effectother than as described in this section.

(r) This section shall become operative on July 1, 2002, howeverit shall not apply to any pending suit or claim for which notice haspreviously been given.

(s) This section shall become inoperative on July 1, 2010, and asof January 1, 2011, is repealed, unless a later enacted statute, thatis enacted before January 1, 2011, deletes or extends the dates onwhich it becomes inoperative and is repealed.

1375.05. (a) Upon the completion of the mandatory prefilingdispute resolution process described in Section 1375, if the partieshave not settled the matter, the association or its assignee may filea complaint in the superior court in the county in which the projectis located. Those matters shall be given trial priority.

(b) In assigning trial priority, the court shall assign the earliestpossible trial date, taking into consideration the pretrial preparationcompleted pursuant to Section 1375, and shall deem the complaintto have been filed on the date of service of the Notice ofCommencement of Legal Proceedings described under Section1375.

(c) Any respondent, subcontractor, or design professional whoreceived timely prior notice of the inspections and testingconducted under Section 1375 shall be prohibited from engaging inadditional inspection or testing, except if all of the followingspecific conditions are met, upon motion to the court:

(1) There is an insurer for a subcontractor or design professional,that did not have timely notice that legal proceedings werecommenced under Section 1375 at least 30 days prior to thecommencement of inspections or testing pursuant to paragraph (6)of subdivision (h) of Section 1375.


(2) The insurer’s insured did not participate in any inspections ortesting conducted under the provisions of paragraph (6) ofsubdivision (h) of Section 1375.

(3) The insurer has, after receiving notice of a complaint filed insuperior court under subdivision (a), retained separate counsel,who did not participate in the Section 1375 dispute resolutionprocess, to defend its insured as to the allegations in the complaint.

(4) It is reasonably likely that the insured would suffer prejudiceif additional inspections or testing are not permitted.

(5) The information obtainable through the proposed additionalinspections or testing is not available through any reasonablealternative sources.

If the court permits additional inspections or testing upon findingthat these requirements are met, any additional inspections ortesting shall be limited to the extent reasonably necessary to avoidthe likelihood of prejudice and shall be coordinated among allsimilarly situated parties to ensure that they occur withoutunnecessary duplication. For purposes of providing notice to aninsurer prior to inspections or testing under paragraph (6) ofsubdivision (h) of Section 1375, if notice of the proceedings wasnot provided by the insurer’s insured, notice may be made viacertified mail either by the subcontractor, design professional,association, or respondent to the address specified in the Statementof Insurance provided under paragraph (2) of subdivision (e) ofSection 1375. Nothing herein shall affect the rights of anintervenor who files a complaint in intervention. If the associationalleges defects that were not specified in the prefiling disputeresolution process under Section 1375, the respondent,subcontractor, and design professionals shall be permitted toengage in testing or inspection necessary to respond to theadditional claims. A party who seeks additional inspections ortesting based upon the amendment of claims shall apply to thecourt for leave to conduct those inspections or that testing. If thecourt determines that it must review the defect claims alleged bythe association in the prefiling dispute resolution process in orderto determine whether the association alleges new or additionaldefects, this review shall be conducted in camera. Upon objectionof any party, the court shall refer the matter to a judge other thanthe assigned trial judge to determine if the claim has been amendedin a way that requires additional testing or inspection.


(d) Any subcontractor or design professional who had notice ofthe facilitated dispute resolution conducted under Section 1375 butfailed to attend, or attended without settlement authority, shall bebound by the amount of any settlement reached in the facilitateddispute resolution in any subsequent trial, although the affectedparty may introduce evidence as to the allocation of the settlement.Any party who failed to participate in the facilitated disputeresolution because the party did not receive timely notice of themediation shall be relieved of any obligation to participate in thesettlement. Notwithstanding any privilege applicable to theprefiling dispute resolution process provided by Section 1375,evidence may be introduced by any party to show whether asubcontractor or design professional failed to attend or attendedwithout settlement authority. The binding effect of this subdivisionshall in no way diminish or reduce a nonsettling subcontractor ordesign professional’s right to defend itself or assert all availabledefenses relevant to its liability in any subsequent trial. Forpurposes of this subdivision, a subcontractor or design professionalshall not be deemed to have attended without settlement authoritybecause it asserted defenses to its potential liability.

(e) Notice of the facilitated dispute resolution conducted underSection 1375 must be mailed by the respondent no later than 20days prior to the date of the first facilitated dispute resolutionsession to all parties. Notice shall also be mailed to each of theseparties’ known insurance carriers. Mailing of this notice shall be bycertified mail. Any subsequent facilitated dispute resolution noticesshall be served by any means reasonably calculated to providethose parties actual notice.

(f) As to the complaint, the order of discovery shall, at therequest of any defendant, except upon a showing of good cause,permit the association’s expert witnesses to be deposed prior to anypercipient party depositions. The depositions shall, at the request ofthe association, be followed immediately by the defendant’sexperts and then by the subcontractors’ and design professionals’experts, except on a showing of good cause. For purposes of thissection, in determining what constitutes “good cause,” the courtshall consider, among other things, the goal of early disclosure ofdefects and whether the expert is prepared to render a finalopinion, except that the court may modify the scope of anyexpert’s deposition to address those concerns.


(g)(1) The only method of seeking judicial relief for the failureof the association or the respondent to complete the disputeresolution process under Section 1375 shall be the assertion, asprovided for in this subdivision, of a procedural deficiency to anaction for damages by the association against the respondent afterthat action has been filed. A verified application asserting aprocedural deficiency shall be filed with the court no later than 90days after the answer to the plaintiff’s complaint has been served,unless the court finds that extraordinary conditions exist.

(2) Upon the verified application of the association or therespondent alleging substantial noncompliance with Section 1375,the court shall schedule a hearing within 21 days of the applicationto determine whether the association or respondent hassubstantially complied with this section. The issue may bedetermined upon affidavits or upon oral testimony, in thediscretion of the court.

(3)(A) If the court finds that the association or the respondent didnot substantially comply with this paragraph, the court shall staythe action for up to 90 days to allow the noncomplying party toestablish substantial compliance. The court shall set a hearingwithin 90 days to determine substantial compliance. At any time,the court may, for good cause shown, extend the period of the stayupon application of the noncomplying party.

(B) If, within the time set by the court pursuant to this paragraph,the association or the respondent has not established that it hassubstantially complied with this section, the court shall determineif, in the interest of justice, the action should be dismissed withoutprejudice, or if another remedy should be fashioned. Under nocircumstances shall the court dismiss the action with prejudice as aresult of the association’s failure to substantially comply with thissection. In determining the appropriate remedy, the court shallconsider the extent to which the respondent has complied with thissection.

(h) This section is operative on July 1, 2002, but does not applyto any action or proceeding pending on that date.

(i) This section shall become inoperative on July 1, 2010, and, asof January 1, 2011, is repealed, unless a later enacted statute that isenacted before January 1, 2011, deletes or extends the dates onwhich it becomes inoperative and is repealed.


1375.1. (a) As soon as is reasonably practicable after theassociation and the builder have entered into a settlementagreement or the matter has otherwise been resolved regardingalleged defects in the common areas, alleged defects in the separateinterests that the association is obligated to maintain or repair, oralleged defects in the separate interests that arise out of, or areintegrally related to, defects in the common areas or separateinterests that the association is obligated to maintain or repair,where the defects giving rise to the dispute have not beencorrected, the association shall, in writing, inform only themembers of the association whose names appear on the records ofthe association that the matter has been resolved, by settlementagreement or other means, and disclose all of the following:

(1) A general description of the defects that the associationreasonably believes, as of the date of the disclosure, will becorrected or replaced.

(2) A good faith estimate, as of the date of the disclosure, ofwhen the association believes that the defects identified inparagraph (1) will be corrected or replaced. The association maystate that the estimate may be modified.

(3) The status of the claims for defects in the design orconstruction of the common interest development that were notidentified in paragraph (1) whether expressed in a preliminary listof defects sent to each member of the association or otherwiseclaimed and disclosed to the members of the association.

(b) Nothing in this section shall preclude an association fromamending the disclosures required pursuant to subdivision (a), andany amendments shall supersede any prior conflicting informationdisclosed to the members of the association and shall retain anyprivilege attached to the original disclosures.

(c) Disclosure of the information required pursuant tosubdivision (a) or authorized by subdivision (b) shall not waiveany privilege attached to the information.

(d) For the purposes of the disclosures required pursuant to thissection, the term “defects” shall be defined to include any damageresulting from defects.


CHAPTER 10. IMPROVEMENTS

1376. (a) Any covenant, condition, or restriction contained inany deed, contract, security instrument, or other instrumentaffecting the transfer or sale of, or any interest in, a commoninterest development that effectively prohibits or restricts theinstallation or use of a video or television antenna, including asatellite dish, or that effectively prohibits or restricts theattachment of that antenna to a structure within that developmentwhere the antenna is not visible from any street or common area,except as otherwise prohibited or restricted by law, is void andunenforceable as to its application to the installation or use of avideo or television antenna that has a diameter or diagonalmeasurement of 36 inches or less.

(b) This section shall not apply to any covenant, condition, orrestriction, as described in subdivision (a), that imposes reasonablerestrictions on the installation or use of a video or televisionantenna, including a satellite dish, that has a diameter or diagonalmeasurement of 36 inches or less. For purposes of this section,“reasonable restrictions” means those restrictions that do notsignificantly increase the cost of the video or television antennasystem, including all related equipment, or significantly decreaseits efficiency or performance and include all of the following:

(1) Requirements for application and notice to the associationprior to the installation.

(2) Requirement of the owner of a separate interest, as defined inSection 1351, to obtain the approval of the association for theinstallation of a video or television antenna that has a diameter ordiagonal measurement of 36 inches or less on a separate interestowned by another.

(3) Provision for the maintenance, repair, or replacement of roofsor other building components.

(4) Requirements for installers of a video or television antenna toindemnify or reimburse the association or its members for loss ordamage caused by the installation, maintenance, or use of a videoor television antenna that has a diameter or diagonal measurementof 36 inches or less.

(c) Whenever approval is required for the installation or use of avideo or television antenna, including a satellite dish, theapplication for approval shall be processed by the appropriate


approving entity for the common interest development in the samemanner as an application for approval of an architecturalmodification to the property, and the issuance of a decision on theapplication shall not be willfully delayed.

(d) In any action to enforce compliance with this section, theprevailing party shall be awarded reasonable attorney’s fees.

2003] 81

STATE OF CALIFORNIA


RECOMMENDATION

Common Interest Development Law:Procedural Fairness in AssociationRulemaking and Decisionmaking

December 2002






Cite this report as Common Interest Development Law: ProceduralFairness in Association Rulemaking and Decisionmaking, 33 Cal. L.Revision Comm’n Reports 81 (2003). This is part of publication #215[2002-2003 Recommendations].

2003] CID RULEMAKING AND DECISIONMAKING 83

STATE OF CALIFORNIA


DAVID HUEBNER, ChairpersonFRANK KAPLAN, Vice ChairpersonDIANE F. BOYER-VINEJOYCE G. COOKDESIREE ICAZA KELLOGGSENATOR BILL MORROWEDMUND L. REGALIAWILLIAM E. WEINBERGER

December 13, 2002


The Law Revision Commission is engaged in a general study ofthe law relating to common interest developments. The objectiveof the study is to set a clear, consistent, and unified policy with re-gard to their formation and management and the transaction of realproperty interests located within them. The study will seek to clar-ify the law, eliminate unnecessary or obsolete provisions, consoli-date existing statutes in one place in the codes, and determine towhat extent common interest housing developments should be sub-ject to regulation.

In this recommendation, the Commission recommends that fairand reasonable procedures be required when a community associa-tion board adopts operating rules or reviews a member’s request tomake changes to the member’s separate interest property.

This recommendation was prepared pursuant to ResolutionChapter 166 of the Statutes of 2002.




2003] 85

COMMON INTEREST DEVELOPMENT LAW

BACKGROUND

The main body of law governing common interest devel-opments is the Davis-Stirling Common Interest DevelopmentAct.1 Other key statutes include the Subdivision Map Act, theSubdivided Lands Act, the Local Planning Law, and the Non-profit Mutual Benefit Corporation Law, as well as various en-vironmental and land use statutes. In addition, statutes basedon separate, rather than common, ownership models still con-trol many aspects of the governing law.2 The complexitiesand inconsistencies of this statutory arrangement have beencriticized by homeowners and practitioners, among others.3

The Law Revision Commission is reviewing the statutesaffecting common interest developments with the goal of set-ting a clear, consistent, and unified policy with regard to theirformation and management and the transfer of real propertyinterests located within them. The objective of the review isto clarify the law and eliminate unnecessary or obsolete pro-visions, to consolidate existing statutes in one place in thecodes, and to determine to what extent common interesthousing developments should be subject to regulation.

The Commission will make a series of recommendationsproposing revision of the laws governing common interestdevelopments. A previous recommendation addressed the or-ganization of the Davis-Stirling Common Interest Develop-

1. Civ. Code § 1350 et seq.

2. See, e.g., Civ. Code §§ 1102 et seq., 2079 et seq. (real estate disclosure).

3. See, e.g., SR 10 (Lee & Sher) (Apr. 10, 1997); California ResearchBureau, Residential Common Interest Developments: An Overview (Mar. 1998)<http://www.library.ca.gov>.


ment Act.4 The organization of this recommendation ispremised on enactment of that prior recommendation.

PROCEDURAL FAIRNESS IN ASSOCIATION RULEMAKING AND DECISIONMAKING

The Commission is examining ways in which to minimizereliance on the courts to resolve disputes between a commu-nity association5 and its members. One approach is to reducethe number of disputes that arise by ensuring that decision-making procedures used by a community association are fairand reasonable. A decision made under a fair and reasonableprocedure is more likely to be a just decision, and is morelikely to be accepted by a homeowner who would dispute adecision reached under a procedure that is perceived to beunfair.

Fair and reasonable procedures are already required by caselaw6 and reflect good public policy. The Commission rec-

4. See Organization of Davis-Stirling Common Interest Development Act, 33Cal. L. Revision Comm’n Reports 1 (2003).

5. A “community association” is the body that governs a common interestdevelopment. See Civ. Code § 1363(a).

6. See Ironwood Owners Ass’n IX v. Solomon, 178 Cal. App. 3d 766, 772,224 Cal. Rptr. 18 (1986) (“When a homeowners’ association seeks to enforcethe provisions of its CCRs to compel an act by one of its member owners, it isincumbent upon it to show that it has followed its own standards and proceduresprior to pursuing such a remedy, that those procedures were fair and reasonableand that its substantive decision was made in good faith, and is reasonable, notarbitrary or capricious.”); Cohen v. Kite Hill Community Ass’n, 142 Cal. App.3d 642, 651, 191 Cal. Rptr. 209 (1983) (“‘The business and governmental as-pects of the association and the association’s relationship to its members clearlygive rise to a special sense of responsibility upon the officers and directors.…This special responsibility is manifested in the requirements of fiduciary dutiesand the requirements of due process, equal protection, and fair dealing.’”)(citation omitted). There may also be circumstances where decisionmaking by aprivate community association is subject to the due process requirements of theUnited States or California Constitutions. See Siegel, The Constitution and Pri-vate Government: Toward the Recognition of Constitutional Rights in Private


ommends that fair and reasonable procedures be requiredwhen a community association adopts operating rules or re-views a member’s request to make changes to the member’sseparate interest property.7 Other types of association deci-sionmaking are already the subject of statutory or regulatoryprocedures.8

SAFE HARBOR APPROACH

Common interest developments come in a variety of typesand sizes. Some are large, professionally managed communi-ties, resembling small cities. Others include fewer than tenunits and are managed entirely by owner-volunteers.

Because common interest developments vary so much insize and character, it is not possible to craft a single procedurethat is appropriate for every association in every circum-stance. For that reason, the proposed law would add generalprovisions requiring fairness and member participation, with-out mandating the specific procedure to be followed. Instead,the proposed law would add optional statutory procedures thatare deemed to satisfy the general requirements. A communityassociation that follows these “safe harbor” procedures wouldbe sure that its decision could not be challenged on proceduralgrounds.

Residential Communities Fifty Years After Marsh v. Alabama, 6 Wm. & MaryBill Rts. J. 461, 493-94 (1998); Rosenberry, The Application of the Federal andState Constitutions to Condominiums, Cooperatives, and Planned Develop-ments, 19 Real Prop., Prob. & Tr. J. 1 (1984).

7. See Civ. Code § 1351(l) (“separate interest” defined).

8. These include procedures for member discipline (see Civ. Code §1363(g)-(h); Corp. Code § 7341; 10 Cal. Code Regs. § 2792.26(b)), amendmentof governing documents (see Civ. Code §§ 1355, 1355.5, 1356; 10 Cal. CodeRegs. § 2792.24), and levying and collection of assessments (see Civ. Code §§1366-1367).


A safe harbor approach is efficient and preserves flexibility.It also avoids disputes over purely procedural matters thatmight arise if strict statutory procedures were imposed.

OPERATING RULES

Existing law recognizes that the board of directors of acommunity association may adopt “operating rules” to governthe operation of a common interest development.9 However,there is no procedure for doing so.

An association’s declaration or bylaws can only be changedwith member approval,10 but an operating rule can be adoptedwithout advance notice to members or member involvement.This is problematic because operating rules can have a signif-icant effect on member interests (e.g., an operating rule couldrestrict use of common facilities or regulate the appearance ofone’s home).

The proposed law would require that the board of directorsprovide advance notice and an opportunity to comment beforeadopting or changing an operating rule. The power to adoptand change rules would remain exclusively in the board of di-rectors, but members would have a chance to express theirviews before a decision is made and would not be surprisedby enforcement of a rule that was never announced. An op-tional “safe harbor” procedure would satisfy the general re-quirements of notice and an opportunity to comment.

In addition, the proposed law would add a procedure formember reversal of a problematic rule change. Reversal could

9. See Civ. Code §§ 1351(j) (“governing documents” includes “operatingrules”), 1360.5 (restriction on rules governing pets), 1363(g) (monetary penaltyfor violation of “governing documents or rules”); 10 Cal. Code Regs. §2792.21(a) (association may formulate “rules of operation of the common areasand facilities owned or controlled by the Association”).

10. Civ. Code § 1355 (amendment of declaration); 10 Cal. Code Regs. §2792.24 (amendment of bylaws).


only be initiated within the first 30 days after a rule change isannounced and would only occur if approved by a majorityvote at a member meeting at which a quorum is established.This would provide a limited member veto, similar to thepower to remove board members that members of an incorpo-rated association enjoy under existing law.11

The proposed law would also make clear that an operatingrule is invalid if it contradicts or is unauthorized by law or theassociation’s governing documents.12

REVIEW OF PROPOSED ALTERATION OFSEPARATE INTEREST PROPERTY

The governing documents of many common interest devel-opments require approval of the community associationbefore a member can alter separate interest property. Forexample, a homeowner might be required to obtain associa-tion approval before adding a room, choosing a color of exte-rior paint, or planting flowers in a front yard. Existing caselaw requires that such a decision be made in good faith and ina fair and reasonable manner.13 The proposed law would cod-ify that general requirement and add an optional “safe harbor”procedure.

The optional procedure would provide a two-tiered process.The first level begins with submission of a written applica-tion. All members would receive notice of the application andcould comment on the proposed alteration. The “reviewing

11. See Corp. Code §§ 7222(a) (director may be removed by members, with-out cause), 7510(e) (members may call special meeting for any lawful purpose).

12. See MaJor v. Miraverde Homeowners Ass’n, Inc., 7 Cal. App. 4th 618,628, 9 Cal. Rptr. 2d 237, 243 (1992) (“Where the association exceeds its scopeof authority, any rule or decision resulting from such an ultra vires act is invalidwhether or not it is a ‘reasonable’ response to a particular circumstance.”).

13. See supra note 6.


body” then makes its decision.14 If the reviewing body fails toact, the proposal is deemed disapproved.

A decision by the reviewing body (including a deemed dis-approval) could be appealed to the board of directors. Appealswould be heard de novo by the board, and any member wouldbe free to testify. The board’s written decision would state thebasis for decision, including reference to facts, standards, orprovisions of the association’s governing documents that sup-port the decision.

The two-tiered process would conserve association re-sources by providing a relatively streamlined procedure fornoncontroversial proposals. Only applications that are actu-ally in dispute would proceed to the more formal level of ahearing before the board of directors. A member who wishesto seek judicial review of the association’s decision would berequired to exhaust the internal appeal process first.

The proposed law would also make clear that judicial re-view of a decision on a proposed alteration of a member’sseparate interest is subject to existing ADR requirements,even if the relief sought is a writ of mandate.15

14. The “reviewing body” is the person or group authorized by an associa-tion’s governing documents to approve or disapprove a proposed alteration of aseparate interest. See proposed Civ. Code § 1378.060(c).

15. Civil Code Section 1354 requires that before filing a civil action to en-force an association’s governing documents, a party must endeavor to submit thedispute to a form of alternative dispute resolution. However, Section 1354appears not to apply to an action for writ of mandate.


Contents

Civ. Code § 1350.7 (added). Document delivery .................. 93

Civ. Code §§ 1357.100-1357.180 (added). Operating rules ........... 94Article 4. Operating Rules ............................... 94

§ 1357.100. “Rule change” defined........................ 94§ 1357.110. Types of operating rules affected................. 94§ 1357.120. Exempt actions ............................ 95§ 1357.130. Validity of operating rule ...................... 95§ 1357.140. Required procedure.......................... 96§ 1357.150. Optional rulemaking procedure .................. 96§ 1357.160. Optional emergency rulemaking procedure .......... 97§ 1357.170. Rule change reversal ......................... 99§ 1357.180. Prospective application ...................... 100

Civ. Code § 1363 (amended). Management by association .......... 100

Civ. Code § 1368 (amended). Owner’s disclosure ................ 102

Civ. Code § 1376 (article heading added). Video or TelevisionAntenna ................................. 105

Civ. Code §§ 1378.010-1378.030 (added). Review of proposedalteration of separate interest ................... 105

Article 2. Review of Proposed Alteration of Separate Interest ....... 106§ 1378.010. Application of article ....................... 106§ 1378.020. Good faith, fair and reasonable procedure required .... 106§ 1378.030. Alternative dispute resolution .................. 107

Civ. Code §§ 1378.050-1378.120 (added). Review of proposedalteration of separate interest ................... 107

Article 3. Optional Procedure ............................ 107§ 1378.050. Nature of procedure ........................ 107§ 1378.060. Definitions .............................. 108§ 1378.070. Approval process .......................... 108§ 1378.080. Commencement of approved alteration............ 110§ 1378.090. Appeal to board ........................... 110§ 1378.100. Judicial review............................ 111§ 1378.110. Scope of inquiry........................... 112§ 1378.120. Delivery of document ....................... 112

____________________




� Note. The placement of article headings in the following provisions ispremised on enactment of the Commission’s recommendation on Organizationof Davis-Stirling Common Interest Development Act, 33 Cal. L. RevisionComm’n Reports 1 (2003).

Civ. Code § 1350.7 (added). Document delivery

SEC. ___. Section 1350.7 is added to the Civil Code, toread:

1350.7. (a) This section applies to delivery of a document tothe extent the section is made applicable by another provisionof this title.

(b) A document shall be delivered by one of the followingmethods:

(1) Personal delivery.(2) First class mail, postage prepaid, addressed to a member

at the address last shown on the books of the association orotherwise provided by the member. Delivery is deemed to becomplete on the fifth day after deposit into the United StatesMail.

(3) E-mail, facsimile, or other electronic means, if thesender and recipient have agreed to that method of delivery.A provision of the governing documents providing forelectronic delivery does not constitute agreement by amember of an association to that form of delivery. If adocument is delivered by electronic means, delivery iscomplete at the time of transmission.

(c) A document may be included in or delivered with abilling statement, newsletter, or other document that isdelivered by one of the methods provided in subdivision (b).

Comment. Section 1350.7 is new. It provides general documentdelivery rules that apply where this section is incorporated by referencein this title. For provisions incorporating this section by reference, see


Sections 1357.150 (rulemaking), 1357.160 (emergency rulemaking),1378.120 (review of proposed alteration of separate interest).

Subdivision (b)(2) provides that delivery by mail is subject to theprocedure for service of notice by mail. See Code Civ. Proc. § 1013(a).Under that procedure, delivery is complete on deposit in the mail, exceptthat any period of notice and any right or duty to do an act or make anyresponse within any period or on a date certain after the service of thedocument that is prescribed by statute or rule of court is extended by fivecalendar days (if the delivery address is within California).

See also Sections 1351(a) (“association” defined), 1351(j) (“governingdocuments” defined).

Civ. Code §§ 1357.100-1357.180 (added). Operating rules

SEC. ___. Article 4 (commencing with Section 1357.100) isadded to Chapter 2 of Title 6 of Part 4 of Division 2 of theCivil Code, to read:

Article 4. Operating Rules

§ 1357.100. “Rule change” defined

1357.100. As used in this article, “rule change” means theadoption, amendment, or repeal of an operating rule by theboard of directors of the association.

Comment. Section 1357.100 is new. See also Section 1351(a)(“association” defined).

§ 1357.110. Types of operating rules affected

1357.110. This article applies to an operating rule relatingto any of the following subjects:

(a) Use of the common area or of an exclusive use commonarea.

(b) Use of a separate interest, including any aesthetic orarchitectural standards that govern alteration of a separateinterest.

(c) Member discipline, including any schedule of monetarypenalties for violation of the governing documents and anyprocedure for the imposition of penalties.


(d) Assessment collection procedures.Comment. Section 1357.110 specifies which types of operating rules

are governed by this article.See also Sections 1351(b) (“common area” defined), 1351(i)

(“exclusive use common area” defined), 1351(j) (“governing documents”defined), 1351(l) (“separate interest” defined).

§ 1357.120. Exempt actions

1357.120. This article does not apply to the followingactions by the board of directors of an association:

(a) A decision in a specific case that is not intended to applygenerally.

(b) A decision setting the amount of a regular or specialassessment.

(c) A rule change that is required by law, if the board ofdirectors has no discretion as to the substantive effect of therule change.

(d) Issuance of a document that merely repeats existing lawor the governing documents.

Comment. Section 1357.120 exempts certain actions from applicationof this article. Subdivision (a) excludes decisions that are adjudicative orexecutive in nature. Subdivision (b) excludes the setting of generallyapplicable assessments. Budgeting and the setting of assessments aregoverned by other law. See Sections 1365-1365.5, 1366. Subdivision (c)reflects the fact that a board of directors may be legally required to makea specific rule change. Subdivision (d) recognizes that mere repetition ofan existing rule is not the making of a new rule.

See also Sections 1351(a) (“association” defined), 1351(j) (“governingdocuments” defined), 1357.100 (“rule change” defined).

§ 1357.130. Validity of operating rule

1357.130. An operating rule is valid and enforceable only ifall of the following requirements are satisfied:

(a) The rule is in writing.(b) The rule is within the authority of the board of directors

of the association conferred by law or by the declaration,


articles of incorporation or association, or bylaws of theassociation.

(c) The rule is consistent with governing law and thedeclaration, articles of incorporation or association, andbylaws of the association.

(d) The rule is adopted, amended, or repealed in good faithand in substantial compliance with the requirements of thisarticle.

Comment. Section 1357.130 is new. Subdivisions (b) and (c) providethat an ultra vires operating rule is invalid. See MaJor v. MiraverdeHomeowners Ass’n, Inc., 7 Cal. App. 4th 618, 628, 9 Cal. Rptr. 2d 237,243 (1992) (“Where the association exceeds its scope of authority, anyrule or decision resulting from such an ultra vires act is invalid whetheror not it is a ‘reasonable’ response to a particular circumstance.”).

See also Sections 1351(a) (“association” defined), 1351(h)(“declaration” defined).

§ 1357.140. Required procedure

1357.140. The board of directors of an association shallprovide members with notice and an opportunity to commentbefore making a rule change.

Comment. Section 1357.140 is new. See also Sections 1351(a)(“association” defined), 1357.100 (“rule change” defined).

§ 1357.150. Optional rulemaking procedure

1357.150. (a) Use of the procedure described in subdivision(b) satisfies the requirements of Section 1357.140. Anassociation is not required to use this procedure.

(b) The board of directors of the association shall delivernotice of a proposed rule change to every associationmember. The notice shall include all of the followinginformation:

(1) The text of the proposed rule change.(2) A description of the purpose and effect of the proposed

rule change.


(3) The deadline for submission of a comment on theproposed rule change.

(c) For a period of not less than 15 days following deliveryof a notice of a proposed rule change, the board of directorsshall accept written comments from association members onthe proposed rule change.

(d) The board of directors shall consider any comments itreceives and shall make a decision on a proposed rule changeat a board meeting. A decision shall not be made until afterthe comment submission deadline.

(e) The board of directors shall deliver notice of a rulechange to every association member. The notice shall set outthe text of the rule change and state the date the rule changetakes effect. The date the rule change takes effect shall be notless than 15 days after notice of the rule change is delivered.

(f) A document that is required to be delivered pursuant tothis section is subject to Section 1350.7.

Comment. Section 1357.150 provides an optional procedure foradoption, amendment, or repeal of an operating rule. Subdivision (a)provides that use of the procedure satisfies the requirements of Section1357.140. Other procedures may also satisfy the requirements of thatsection.

Subdivisions (b) and (e) require that notice be provided to everymember. Failure to provide notice to every member will not invalidate arule change if the failure is inadvertent. See Section 1357.130(d) (validityof operating rule).

Subdivision (d) provides that a decision on a proposed rule changeshall be made at a meeting of the board of directors. See Section 1363.05(“Common Interest Development Open Meeting Act”).

See also Sections 1351(a) (“association” defined), 1357.100 (“rulechange” defined).

§ 1357.160. Optional emergency rulemaking procedure

1357.160. (a) Use of the procedure described in subdivision(b) satisfies the requirements of Section 1357.140. Anassociation is not required to use this procedure.


(b) If the board of directors of an association determinesthat an immediate rule change is necessary to address animminent threat to public health or safety, or an imminent riskof substantial economic loss to the association, it may makethe rule change immediately.

(c) As soon as possible after making a rule change underthis section, but not more than 15 days after making the rulechange, the board of directors shall deliver notice of the rulechange to every association member. The notice shall includethe text of the rule change and an explanation of why animmediate rule change is required to address an imminentthreat to public health or safety, or an imminent risk ofsubstantial economic loss to the association.

(d) A rule change made under this section is effective for120 days, unless the rule change provides for a shortereffective period.

(e) A rule change made under this section may not bereadopted under this section.

(f) A document that is required to be delivered pursuant tothis section is subject to Section 1350.7.

Comment. Section 1357.160 provides an optional procedure foremergency adoption, amendment, or repeal of an operating rule.Subdivision (a) provides that use of the procedure satisfies therequirements of Section 1357.140. Other procedures may also satisfy therequirements of that section.

Subdivision (d) provides that an emergency rule change is temporary.Subdivision (e) makes clear that the effective period of an emergency

rule change may not be extended by readopting the rule change under theemergency rulemaking procedure. To readopt a rule change made underthis section an association must follow the procedure provided in Section1357.150, or some other procedure that provides for advance notice tomembers and an opportunity to comment before the rule change is made.

See also Sections 1351(a) (“association” defined), 1357.100 (“rulechange” defined).


§ 1357.170. Rule change reversal

1357.170. (a) Members of an association owning 10 percentor more of the separate interests may call a special meeting toreverse a rule change.

(b) A special meeting may be called by delivering a writtenrequest on the chair or secretary of the board of directors. Thewritten request may not be delivered more than 30 days afterthe members of the association are notified of the rule change.Members are deemed to have been notified of a rule changeon delivery of notice of the rule change, or on enforcement ofthe resulting rule, whichever is sooner.

(c) The rule change may be reversed by the affirmative voteof a majority of the votes represented and voting at a dulyheld meeting at which a quorum is present (which affirmativevotes also constitute a majority of the required quorum) or bywritten ballot in conformity with Section 7513 of theCorporations Code, or if the declaration or bylaws require agreater proportion, by the affirmative vote or written ballot ofthe proportion required.

(d) Unless otherwise provided in the declaration or bylaws,for the purposes of this section, a member may cast one voteper separate interest owned.

(e) A meeting called under this section is governed byChapter 5 (commencing with Section 7510) of Part 3 ofDivision 2 of Title 1 of, and Sections 7612 and 7613 of, theCorporations Code.

(f) A rule change reversed under this section may not bereadopted for one year after the date of the meeting reversingthe rule change.

Comment. Section 1357.170 authorizes member reversal of a recentrule change. This authority is limited to cases where members owning 10percent or more of the separate interests call a meeting for that purposewithin the specified time. This specific provision supersedes the generalprovision authorizing five percent or more of the members of a nonprofitmutual benefit corporation to call a special meeting. See Corp. Code §


7510(e). The governing documents of an association may provide otheradditional procedures for member participation in rulemaking.

Subdivision (c) is drawn from Corporations Code Section 5034.See also Sections 1351(a) (“association” defined), 1357.100 (“rule

change” defined).

§ 1357.180. Prospective application

1357.180. (a) This article applies to a rule change made onor after January 1, 2004.

(b) Nothing in this article affects the validity of a rulechange made before January 1, 2004.

Comment. Section 1357.180 governs the application of this article.See also Section 1357.100 (“rule change” defined).

Civ. Code § 1363 (amended). Management by association

SEC. ___. Section 1363 of the Civil Code is amended toread:

1363. (a) A common interest development shall be managedby an association which may be incorporated orunincorporated. The association may be referred to as acommunity association.

(b) An association, whether incorporated or unincorporated,shall prepare a budget pursuant to Section 1365 and discloseinformation, if requested, in accordance with Section 1368.

(c) Unless the governing documents provide otherwise, andregardless of whether the association is incorporated orunincorporated, the association may exercise the powersgranted to a nonprofit mutual benefit corporation, asenumerated in Section 7140 of the Corporations Code, exceptthat an unincorporated association may not adopt or use acorporate seal or issue membership certificates in accordancewith Section 7313 of the Corporations Code.

The association, whether incorporated or unincorporated,may exercise the powers granted to an association by Section383 of the Code of Civil Procedure and the powers granted tothe association in this title.


(d) Meetings of the membership of the association shall beconducted in accordance with a recognized system ofparliamentary procedure or any parliamentary procedures theassociation may adopt.

(e) Notwithstanding any other provision of law, notice ofmeetings of the members shall specify those matters the boardintends to present for action by the members, but, except asotherwise provided by law, any proper matter may bepresented at the meeting for action.

(f) Members of the association shall have access toassociation records and operating rules in accordance withArticle 3 (commencing with Section 8330) of Chapter 13 ofPart 3 of Division 2 of Title 1 of the Corporations Code.

(g) If an association adopts or has adopted a policyimposing any monetary penalty, including any fee, on anyassociation member for a violation of the governingdocuments or rules of the association, including any monetarypenalty relating to the activities of a guest or invitee of amember, the board of directors shall adopt and distribute toeach member, by personal delivery or first-class mail, aschedule of the monetary penalties that may be assessed forthose violations, which shall be in accordance withauthorization for member discipline contained in thegoverning documents. The board of directors shall not berequired to distribute any additional schedules of monetarypenalties unless there are changes from the schedule that wasadopted and distributed to the members pursuant to thissubdivision.

(h) When the board of directors is to meet to consider orimpose discipline upon a member, the board shall notify themember in writing, by either personal delivery or first-classmail, at least 10 days prior to the meeting. The notificationshall contain, at a minimum, the date, time, and place of themeeting, the nature of the alleged violation for which a


member may be disciplined, and a statement that the memberhas a right to attend and may address the board at themeeting. The board of directors of the association shall meetin executive session if requested by the member beingdisciplined.

If the board imposes discipline on a member, the board shallprovide the member a written notification of the disciplinaryaction, by either personal delivery or first-class mail, within15 days following the action. A disciplinary action shall notbe effective against a member unless the board fulfills therequirements of this subdivision.

(i) Whenever two or more associations have consolidatedany of their functions under a joint neighborhood associationor similar organization, members of each participatingassociation shall be entitled to attend all meetings of the jointassociation other than executive sessions, (1) shall be givenreasonable opportunity for participation in those meetings and(2) shall be entitled to the same access to the jointassociation’s records as they are to the participatingassociation’s records.

(j) Nothing in this section shall be construed to create,expand, or reduce the authority of the board of directors of anassociation to impose monetary penalties on an associationmember for a violation of the governing documents or rulesof the association.

Comment. Subdivision (f) of Section 1363 is amended to make clearthat an association’s operating rules are subject to inspection bymembers.

See also Sections 1351(a) (“association” defined), 1351(c) (“commoninterest development” defined), 1351(j) (“governing documents”defined).

Civ. Code § 1368 (amended). Owner’s disclosure

SEC. ___. Section 1368 of the Civil Code is amended toread:


1368. (a) The owner of a separate interest, other than anowner subject to the requirements of Section 11018.6 of theBusiness and Professions Code, shall, as soon as practicablebefore transfer of title to the separate interest or execution of areal property sales contract therefor, as defined in Section2985, provide the following to the prospective purchaser:

(1) A copy of the governing documents of the commoninterest development, including any operating rules, andincluding a copy of the association’s articles of incorporation,or, if not incorporated, a statement in writing from anauthorized representative of the association that theassociation is not incorporated.

(2) If there is a restriction in the governing documentslimiting the occupancy, residency, or use of a separate intereston the basis of age in a manner different from that provided inSection 51.3, a statement that the restriction is onlyenforceable to the extent permitted by Section 51.3 and astatement specifying the applicable provisions of Section51.3.

(3) A copy of the most recent documents distributedpursuant to Section 1365.

(4) A true statement in writing obtained from an authorizedrepresentative of the association as to the amount of theassociation’ s current regular and special assessments andfees, any assessments levied upon the owner’s interest in thecommon interest development that are unpaid on the date ofthe statement, and any monetary fines or penalties leviedupon the owner’s interest and unpaid on the date of thestatement. The statement obtained from an authorizedrepresentative shall also include true information on latecharges, interest, and costs of collection which, as of the dateof the statement, are or may be made a lien upon the owner’sinterest in a common interest development pursuant toSection 1367 or 1367.1.


(5) A copy or a summary of any notice previously sent tothe owner pursuant to subdivision (h) of Section 1363 thatsets forth any alleged violation of the governing documentsthat remains unresolved at the time of the request. The noticeshall not be deemed a waiver of the association’s right toenforce the governing documents against the owner or theprospective purchaser of the separate interest with respect toany violation. This paragraph shall not be construed to requirean association to inspect an owner’s separate interest.

(6) A copy of the preliminary list of defects provided toeach member of the association pursuant to Section 1375,unless the association and the builder subsequently enter intoa settlement agreement or otherwise resolve the matter andthe association complies with Section 1375.1. Disclosure ofthe preliminary list of defects pursuant to this paragraph shallnot waive any privilege attached to the document. Thepreliminary list of defects shall also include a statement that afinal determination as to whether the list of defects is accurateand complete has not been made.

(7) A copy of the latest information provided for in Section1375.1.

(8) Any change in the association’s current regular andspecial assessments and fees which have been approved bythe association’s board of directors, but have not become dueand payable as of the date disclosure is provided pursuant tothis subdivision.

(b) Upon written request, an association shall, within 10days of the mailing or delivery of the request, provide theowner of a separate interest with a copy of the requesteditems specified in paragraphs (1) to (8), inclusive, ofsubdivision (a). The association may charge a fee for thisservice, which shall not exceed the association’s reasonablecost to prepare and reproduce the requested items.


(c) An association shall not impose or collect anyassessment, penalty, or fee in connection with a transfer oftitle or any other interest except the association’s actual coststo change its records and that authorized by subdivision (b).

(d) Any person or entity who willfully violates this sectionshall be liable to the purchaser of a separate interest which issubject to this section for actual damages occasioned therebyand, in addition, shall pay a civil penalty in an amount not toexceed five hundred dollars ($500). In an action to enforcethis liability, the prevailing party shall be awarded reasonableattorneys’ fees.

(e) Nothing in this section affects the validity of title to realproperty transferred in violation of this section.

(f) In addition to the requirements of this section, an ownertransferring title to a separate interest shall comply withapplicable requirements of Sections 1133 and 1134.

Comment. Subdivision (a) of Section 1368 is amended to make clearthat the required disclosure of the governing documents of a commoninterest development includes disclosure of any operating rules.

See also Sections 1351(a) (“association” defined), 1351(c) (“commoninterest development” defined), 1351(j) (“governing documents”defined), 1351(l) (“separate interest” defined).

Heading of Article 1 (commencing with Section 1376) (added)

SEC. ___. An article heading is added immediatelypreceding Section 1376 of the Civil Code, to read:

Article 1. Video or Television Antenna

Civ. Code §§ 1378.010-1378.030 (added). Review of proposedalteration of separate interest



Article 2. Review of Proposed Alteration ofSeparate Interest

§ 1378.010. Application of article

1378.010. If an association’s governing documents requirethat an owner of a separate interest obtain associationapproval before altering a separate interest, exclusive usecommon area, or part of the common area, this article governsthe association’s decisionmaking process.

Comment. Section 1378.010 is new. See also Sections 1351(a)(“association” defined), 1351(b) (“common area” defined), 1351(i)(“exclusive use common area” defined), 1351(j) (“governing documents”defined), 1351(l) (“separate interest” defined), 1360 (modification ofseparate interest contained within building).

§ 1378.020. Good faith, fair and reasonable procedure required

1378.020. (a) A decision to approve or disapprove aproposed alteration of a member’s separate interest, anexclusive use common area, or part of the common area, shallbe made in good faith and in a fair and reasonable manner.

(b) The procedure provided in Article 3 (commencing withSection 1378.050) is fair and reasonable. Other proceduresmay also be fair and reasonable under the circumstances.

Comment. Subdivision (a) of Section 1378.020 is consistent with caselaw requiring that an association enforce its governing documents ingood faith and in a fair and reasonable manner. See Ironwood OwnersAss’n IX v. Solomon, 178 Cal. App. 3d 766, 772, 224 Cal. Rptr. 18(1986) (“When a homeowners’ association seeks to enforce theprovisions of its CCRs to compel an act by one of its member owners, itis incumbent upon it to show that it has followed its own standards andprocedures prior to pursuing such a remedy, that those procedures werefair and reasonable and that its substantive decision was made in goodfaith, and is reasonable, not arbitrary or capricious.”); Cohen v. Kite HillCommunity Ass’n, 142 Cal. App. 3d 642, 651, 191 Cal. Rptr. 209 (1983)(“‘The business and governmental aspects of the association and theassociation’s relationship to its members clearly give rise to a specialsense of responsibility upon the officers and directors.… This specialresponsibility is manifested in the requirements of fiduciary duties and


the requirements of due process, equal protection, and fair dealing.’”)(citation omitted).

Subdivision (b) establishes the procedure provided in Article 3 as asafe harbor. An association is not required to use the statutory procedure.It may use any procedure that is fair and reasonable under thecircumstances. For example, an association might decide to use thestatutory procedure to review structural changes, while adopting asimpler procedure for review of minor landscaping improvements.

See also Sections 1351(b) (“common area” defined), 1351(i)(“exclusive use common area” defined), 1351(l) (“separate interest”defined).

§ 1378.030. Alternative dispute resolution

1378.030. A writ proceeding for review of a decision toapprove or disapprove a proposed alteration of a member’sseparate interest, an exclusive use common area, or part of thecommon area, is subject to Section 1354.

Comment. Section 1378.030 is new. This section supersedes languagein Section 1354(b) limiting the alternative dispute resolution provisionsto civil actions for declaratory or injunctive relief.

See also Sections 1351(b) (“common area” defined), 1351(i)(“exclusive use common area” defined), 1351(l) (“separate interest”defined).

Civ. Code §§ 1378.050-1378.120 (added). Review of proposedalteration of separate interest


Article 3. Optional Procedure

§ 1378.050. Nature of procedure

1378.050. This article provides a fair and reasonableprocedure that an association may use in reviewing amember’s proposed alteration of a separate interest, anexclusive use common area, or part of the common area. Useof the procedure is not mandatory.


Comment. Section 1378.050 makes clear that the procedure providedin this article is optional. However, a decision made in good faith, underthe procedure provided in this article, satisfies the requirements ofSection 1378.020. See Section 1378.020(b).

See also Sections 1351(a) (“association” defined), 1351(b) (“commonarea” defined), 1351(i) (“exclusive use common area” defined), 1351(l)(“separate interest” defined).

§ 1378.060. Definitions

1378.060. (a) The definitions in this section govern theconstruction of this article.

(b) “Participating member” means an association memberwho, before the reviewing body makes its decision on theproposed alteration, submits to the reviewing body acomment opposed to a proposed alteration of a separateinterest, exclusive use common area, or part of the commonarea.

(c) “Reviewing body” means the person or group authorizedby an association’s governing documents to approve ordisapprove the alteration of a separate interest, exclusive usecommon area, or part of the common area.

Comment. Section 1378.060 is new. In some associations thereviewing body is the board of directors. In that situation, an appeal tothe board of directors would result in reconsideration of the board’sdecision as the reviewing body and issuance of a written decision toserve as a record in any judicial review of the decision on appeal. SeeSections 1378.090 (appeal to board), 1378.100 (judicial review).

See also Sections 1351(a) (“association” defined), 1351(b) (“commonarea” defined), 1351(i) (“exclusive use common area” defined), 1351(j)(“governing documents” defined), 1351(l) (“separate interest” defined).

§ 1378.070. Approval process

1378.070. (a) An association member who proposes to altera separate interest shall submit a written application to thereviewing body. The application shall be in the form specifiedby the association. An incomplete application may bereturned to the applicant with an explanation of why the


application is incomplete. No further action is required on anapplication that is returned as incomplete.

(b) Within 30 days after receipt of the application, thereviewing body shall deliver notice of the application to thefollowing persons:

(1) If the proposed alteration would affect the common area,to all members.

(2) If the association delivers a newsletter, billing statement,or other document to all members at least once a month, to allmembers.

(3) If the proposed alteration would not affect the commonarea and the association does not deliver a newsletter, billingstatement, or other document to all members at least once amonth, to members owning separate interests within 500 feetof, or located within the same building as, the separateinterest that is the subject of the proposed alteration.

(c) The notice shall include the address or location of theseparate interest, exclusive use common area, or part of thecommon area, that is the subject of the application, adescription of the proposed alteration adequate to informother members of its nature, and the date after which thereviewing body may make its decision.

(d) Not less than 20 days nor more than 45 days afterdelivery of the notice of the application, the reviewing bodyshall deliver a written decision to the applicant and to anyparticipating member. If the reviewing body does not delivera written decision to the applicant within 45 days afterdelivery of the notice of application, the application isdeemed disapproved on the 45th day.

(e) A written decision approving a proposed alteration of aseparate interest, exclusive use common area, or part of thecommon area, shall state whether the reviewing bodyreceived any comments opposing the alteration.

Comment. Section 1378.070 is new. See also Sections 1351(a)(“association” defined), 1351(b) (“common area” defined), 1351(i)


(“exclusive use common area” defined), 1351(j) (“governing documents”defined), 1351(l) (“separate interest” defined), 1378.060(b)(“participating member” defined), 1378.060(c) (“reviewing body”defined), 1378.120 (delivery of document).

§ 1378.080. Commencement of approved alteration

1378.080. (a) Except as provided in subdivision (b), anapplicant may not commence work on an approved alterationof a separate interest, exclusive use common area, or part ofthe common area, until either the period for appeal passeswithout an appeal being filed or the approval is upheld onappeal.

(b) If a written decision approving alteration of a separateinterest, exclusive use common area, or part of the commonarea, states that no member comments opposing the alterationwere received by the reviewing body before it made itsdecision, the applicant may commence work on the approvedalteration immediately.

Comment. Section 1378.080 is new. See also Sections 1351(b)(“common area” defined), 1351(i) (“exclusive use common area”defined), 1351(l) (“separate interest” defined), 1378.090 (appeal toboard).

§ 1378.090. Appeal to board

1378.090. (a) An applicant or participating member mayappeal the approval or disapproval of a proposed alteration ofa separate interest, exclusive use common area, or part of thecommon area, to the board of directors of the association. Theappeal shall be in writing and shall be delivered to the boardof directors within 30 days after the reviewing body’sdecision is delivered or the proposed alteration is deemeddisapproved.

(b) Within 30 days after receipt of a timely request forappeal, the board of directors shall deliver notice of theappeal to the following persons:


(1) If the proposed alteration would affect the common area,to all members.

(2) If the association delivers a newsletter, billing statement,or other document to all members at least once a month, to allmembers.

(3) If the proposed alteration would not affect the commonarea and the association does not deliver a newsletter, billingstatement, or other document to all members at least once amonth, to members owning separate interests within 500 feetof, or located within the same building as, the separateinterest that is the subject of the proposed alteration.

(c) The notice of appeal shall state the time and place wherethe appeal will be heard.

(d) Within 45 days after notice of the appeal is delivered,the board of directors shall meet and review de novo theproposed alteration that is the subject of the appeal. Anyassociation member may testify at the appeal and may submitwritten materials in support of or in opposition to theproposed alteration.

(e) Within 15 days after hearing the appeal, the board ofdirectors shall deliver its decision to the applicant and, if theappeal is by a person other than the applicant, to that person.The decision shall be in writing and shall include a statementexplaining the basis for the decision, including reference tofacts, standards, or provisions of the governing documentsthat support the decision.

Comment. Section 1378.090 is new. See also sections 1351(a)(“association” defined), 1351(b) (“common area” defined), 1351(i)(“exclusive use common area” defined), 1351(j) (“governing documents”defined), 1351(l) (“separate interest” defined), 1378.060(b)(“participating member” defined), 1378.060(c) (“reviewing body”defined), 1378.120 (delivery of document).

§ 1378.100. Judicial review

1378.100. (a) A decision of the reviewing body made underSection 1378.070 is not subject to judicial review.


(b) Any member may seek judicial review of a decision ofthe board of directors of the association made under Section1378.090. Judicial review may be by writ of administrativemandamus, pursuant to Section 1094.5 of the Code of CivilProcedure.

Comment. Section 1378.100 is new. Judicial review is only availableto review a decision of the board of directors on appeal. Thus, theinternal appeal process must be exhausted before a member may seekjudicial review of a decision on a proposed alteration.

Subdivision (b) provides that a decision on a proposed alteration of aseparate interest may be reviewed under the procedure for administrativemandamus. This does not preclude other applicable forms of relief.

See also Sections 1351(a) (“association” defined), 1351(j) (“governingdocuments” defined), 1378.060(c) (“reviewing body” defined).

§ 1378.110. Scope of inquiry

1378.110. In making a decision to approve or disapprove aproposed alteration of a member’s separate interest, anexclusive use common area, or part of the common area, thereviewing body or board of directors may consider anyrelevant information. The reviewing body or board ofdirectors is not required to consider information other thanthat provided to the reviewing body or board of directors.

Comment. Section 1378.110 is new. See also Sections 1351(b)(“common area” defined), 1351(i) (“exclusive use common area”defined), 1351(l) (“separate interest” defined).

§ 1378.120. Delivery of document

1378.120. A document that is required to be deliveredpursuant to this article is subject to Section 1350.7.

Comment. Section 1378.120 is new.

2003] 113

STATE OF CALIFORNIA


RECOMMENDATION

Exemptions from Enforcement of MoneyJudgments: Second Decennial Review

December 2002






Cite this report as Exemptions from Enforcement of Money Judgments:Second Decennial Review, 33 Cal. L. Revision Comm’n Reports 113(2003). This is part of publication #215 [2002-2003 Recommenda-tions].

2003] MONEY JUDGMENT EXEMPTIONS 115

STATE OF CALIFORNIA


DAVID HUEBNER, ChairpersonFRANK KAPLAN, Vice ChairpersonDIANE F. BOYER-VINEJOYCE G. COOKDESIREE ICAZA KELLOGGSENATOR BILL MORROWEDMUND L. REGALIAWILLIAM E. WEINBERGER

December 13, 2002


Pursuant to its statutory duty to review dollar amounts ofexemptions from enforcement of judgments, the Law RevisionCommission recommends adjusting personal property monetaryexemptions to account for cost-of-living increases since the lastreview in 1995. In addition, the Commission recommendsimplementation of an automatic triennial cost-of-living adjustment,consistent with federal bankruptcy law to keep pace with inflationwithout the need for legislation.

This review of exemptions has been conducted pursuant to Codeof Civil Procedure Section 703.120(a).




2003] 117

EXEMPTIONS FROM ENFORCEMENT OF MONEYJUDGMENTS: SECOND DECENNIAL REVIEW

The Enforcement of Judgments Law1 charges the LawRevision Commission with the duty to review the dollaramount of debtors’ exemptions every 10 years and to recom-mend any changes in amounts “that appear proper.”2 As aresult of its second decennial review, the Commission pro-poses increasing the amount of personal property exemptionsby approximately 20% to adjust for changes in the cost ofliving since the last comprehensive review. The Commissionalso proposes implementation of an automatic triennial cost-of-living adjustment for consistency with the automaticadjustment of California’s alternative bankruptcy exemptions.

Background

Exemptions are necessary to protect an amount of propertysufficient to support the judgment debtor and dependent fam-ily and to facilitate the debtor’s financial rehabilitation. Tofulfill this purpose, exemption amounts need to be adjustedperiodically to reflect changes in the cost of living.

1. Code Civ. Proc. § 680.010 et seq. The Enforcement of Judgments Law,operative July 1, 1983, was enacted on Commission recommendation. Part ofthat study involved modernizing the exemption statutes. See generally TentativeRecommendation Proposing the Enforcement of Judgments Law, 15 Cal. L.Revision Comm’n Reports 2001, 2075-106 (1980); 1982 Creditors’ RemediesLegislation, 16 Cal. L. Revision Comm’n Reports 1001, 1079-109 (1982).

All further statutory references are to the Code of Civil Procedure, unlessotherwise indicated.

2. See Section 703.120(a). The 10-year periods run from July 1, 1983, theoperative date of the Enforcement of Judgments Law. The first review wasdeferred until 1994 as authorized by former Government Code Section 7550.5(enacted by 1992 Cal. Stat. ch. 710, § 1; repealed under its own terms, Jan. 1,1995). The period of this second decennial review is counted from the original1983 operative date.


Existing law provides seven personal property exemptionsthat are subject to dollar limitations: motor vehicles,3 residen-tial repair materials,4 jewelry, heirlooms, and works of art,5tools of a trade, business, or profession,6 directly depositedSocial Security and public benefit payments,7 inmate trustaccounts,8 and life insurance and annuity loan value.9 Someof these exemptions are increased in the case of marital prop-erty or indebtedness of both spouses,10 but the general rule isthat married persons are not entitled to increased or doubledexemption amounts, regardless of whether one or both of thespouses are debtors and regardless of the separate or commu-nity nature of the property.11

Exemptions based on need or on the type of property areimmune from inflation and price changes.12 Exemptions in

3. Section 704.010.

4. Section 704.030.

5. Section 704.040.

6. Section 704.060.

7. Section 704.080.

8. Section 704.090.

9. Section 704.100.

10. E.g., Sections 704.030(b) (residential repair materials where spouses liveseparate and apart), 704.060(a)(2)-(3), (d)(2) (tools of trade), 704.080(b)(2)(directly deposited Social Security or public benefit payments), 704.090(a)(inmate trust account).

11. In relevant part, Section 703.110(a) provides:

Where the property exempt under a particular exemption is limited to aspecified maximum dollar amount, unless the exemption provision specif-ically provides otherwise, the two spouses together are entitled to oneexemption limited to the specified maximum dollar amount, whether oneor both of the spouses are judgment debtors under the judgment andwhether the property sought to be applied to the satisfaction of the judg-ment is separate or community.

12. See, e.g., Sections 704.020 (necessary household furnishings, appliances,provisions, wearing apparel, and other personal effects), 704.050 (necessaryhealth aids and prosthetic and orthopedic appliances).


fixed dollar amounts are subject to degradation as the pur-chasing power of a dollar shrinks. It is difficult to determine adollar amount that is appropriate in all circumstances, butonce a dollar amount has been set by the Legislature, it fol-lows that exempt amounts should be revised from time totime to reflect inflation. Otherwise, the protection enacted atone point in time will erode significantly over the years.

Cost-of-Living Adjustment

Legislation comprehensively adjusting personal propertyexemption amounts was last enacted, on Commission recom-mendation, in 1994 (operative July 31, 1995).13 Since thattime, the average cost of living in California has increased byapproximately 21%,14 making revision of exempt amountsappropriate to account for inflation.

In addition, the California alternative bankruptcy-onlyexemptions have recently been increased for general con-formity with the federal amounts and subjected to an auto-matic triennial cost-of-living adjustment through incorpora-

13. See 1995 Cal. Stat. ch. 196; Debtor-Creditor Relations, 25 Cal. L. Revi-sion Comm’n Reports 1, 12-15 (1995). The alternative bankruptcy-only exemp-tions in Section 703.140(b) were also increased for conformity with federalamounts in this Commission-sponsored legislation.

14. Using the California All Urban Consumer figures, the factor from 1995 toAugust 2002 is 1.21. This factor is calculated by dividing the current statewideCPI of 186.8 by the 1995 annual average CPI of 154 (1982-84=100). See Cali-fornia Dept. of Industrial Relations, Div. of Labor Statistics & Research,Consumer Price Index — California (12/13/02), at <http://www.dir.ca.gov/DLSR/statistics_research.html>, under file name <PresentCCPI.PDF>.

The most recent monthly figure is used to set the basis before the triennialadjustment commences in 2007 under the proposed general rule. This is neces-sary to compensate as much as possible for the change in the CPI between the1995 revisions and the likely January 1, 2004, operative date of legislation thatwould implement this proposal. See proposed Section 703.150 infra.


tion of federal law.15 Thus, the alternative bankruptcy exemp-tions no longer need to be adjusted with respect to inflation.

To account for changes in the cost of living since 1995, andto catch up with the recent bankruptcy-only revisions, theCommission recommends amending the personal propertyenforcement of judgment exemptions as set out in the follow-ing table, with amounts rounded to the nearest $25:16

Code Civ. Proc. Type of Property Current x 1.21 Rounded

704.010 Motor vehicle $ 1,900 $ 2,305 $ 2,300

704.030 Home repair materials $ 2,000 $ 2,426 $ 2,425

704.040 Jewelry, heirlooms, art $ 5,000 $ 6,065 $ 6,075

704.060(a)(1-2) Tools of trade 1 $ 5,000 $ 6,065 $ 6,075

704.060(a)(3) Tools of trade 2* $10,000 $12,130 $12,150

704.060(d)(1) Commercial vehicle 1 $ 4,000 $ 4,852 $ 4,850

704.060(d)(2) Commercial vehicle 2* $ 8,000 $ 9,704 $ 9,700

704.080(b)(1) Social Security 1 $ 2,000 $ 2,426 $ 2,425

704.080(b)(2) Social Security 2 $ 3,000 $ 3,639 $ 3,650

704.080(b)(1) Public benefits 1 $ 1,000 $ 1,213 $ 1,225

704.080(b)(2) Public benefits 2 $ 1,500 $ 1,819 $ 1,825

704.090(a) Inmate trust funds $ 1,000 $ 1,213 $ 1,225

704.090(b) Inmate trust funds limit17 $ 300

704.100(b) Life insurance loan value $ 8,000 $ 9,704 $ 9,700

15. See Section 703.140, as amended by 1998 Cal. Stat. ch. 290, § 1(operative Jan. 1, 2000). The amounts in Section 703.140(b) are identical to thefederal bankruptcy exemptions (11 U.S.C. § 522(d)), except that there is no capon the aggregate personal property exemption (compare Section 703.140(b)(3)with 11 U.S.C. § 522(d)(3)), and the limit on the wildcard exemption applicablewhere the debtor does not claim the residence exemption is nearly double inCalifornia (compare Section 703.140(b)(5) with 11 U.S.C. § 522(d)(5)). Section703.140(c) loosely incorporates the federal bankruptcy automatic COLA rule,presumably including the nearest $25 rounding principle.

16. The $25 rounding figure is drawn from federal bankruptcy law. See 11U.S.C. § 104(b)(1)(B).

17. The special $300 exemption of inmate trust funds as to claims for vic-tims’ restitution fines and orders would not be subject to the automatic COLA,in recognition of the special status of this provision.


Two exemptions (marked with asterisks in the table) are setat double the amount of other exemptions. Where an exemptamount is double another exempt amount, as for personalproperty used in a trade, business, or profession by spouses,18

the doubling feature should be retained, rather than applyingthe COLA factor to the higher amount.

Homestead Exemption

The homestead exemption receives frequent legislativeattention, because of the obvious importance of the home, thehigh level of the exemption, and the role played by interestgroups that can effectively sponsor legislation. For thatreason, the Commission has not reviewed the currenthomestead exemption amount and makes no recommendationon whether that amount should be changed.19

Automatic Triennial Cost-of-Living Adjustment

The Commission’s existing duty to review exemptionstatutes every ten years should be supplemented with anautomatic triennial cost-of-living adjustment.20 This willbring the enforcement of judgments personal property exemp-tions in line with the automatic COLA applicable to thebankruptcy-only exemptions. In addition, since a debtor filingfor personal bankruptcy in California can choose between thebankruptcy-only exemptions and the enforcement of

18. Section 704.060(a)(3).

19. As amended in 1997, the statutes provide a three-tier homesteadexemption in the following amounts: a $50,000 basic exemption, unless aspecial rule applies to the resident judgment debtor or spouse; a $75,000“family” exemption; and a $125,000 elder or disabled exemption. See Section704.730, as amended by 1997 Cal. Stat. ch. 82, § 1. As introduced, the 1997 billthat increased the top tier to $125,000 had also proposed to increase the first andsecond tiers to $75,000 and $100,000 respectively. See AB 451 (1997-98Session), as introduced, Feb. 24, 1997.

20. See proposed Section 703.150 infra.


judgment exemptions, the relative dollar relationship betweenthe two sets of exemptions will be preserved over time.

Automatic COLA provisions relieve the Legislature of theburden of considering routine adjustments needed to preserveimportant protections in the face of inflation. Use of thissimple and practical approach has grown in recent decades.There are many examples scattered throughout the Californiacodes, applicable to retirement benefits,21 welfare payments,22

taxes,23 campaign spending limits,24 and a variety of otherfunctions.25

The Commission recommends using the California AllUrban Consumer Price Index26 as the best single measure ofcost-of-living changes affecting Californians. This indexshould be used to determine the appropriate adjustments ofboth the enforcement of judgments exemptions and thebankruptcy-only exemptions. In bankruptcy, this will result ina divergence from the similar amounts provided in the federalBankruptcy Code. This is not significant, however, becauseCalifornia has opted out of the federal exemptions,27 and it ispreferable to maintain the relative relationship between thetwo sets of exemptions available in California bankruptcyfilings.

21. E.g., Gov’t Code §§ 9360.9 (legislative retirement), 21310-21337.1(public employees’ retirement), 31870 (county employees’ retirement).

22. E.g., Welf. & Inst. Code §§ 11453 (AFDC), 12201(i) (aged, blind, anddisabled).

23. E.g., Rev. & Tax. Code §§ 51, 2212.

24. Gov’t Code § 82001.

25. At least two states have automatic COLA provisions applicable toenforcement exemptions. See Alaska Stat. Ann. § 09.38.115 (Westlaw 2002);Minn. Stat. Ann. § 550.37(4a) (Westlaw 2002). These provisions appear to bedrawn from Section 2 of the Uniform Exemptions Act (1976, 1979).

26. See note 14 supra.

27. Section 703.130.


Responsibility for determining the appropriate COLA factorshould be placed on the Judicial Council.28 This is appropriatebecause the Judicial Council is responsible for rules ofpractice and procedure under the Enforcement of JudgmentsLaw, as well as for preparation of exemption claim informa-tional forms.29 This responsibility would also be analogous tothe role of the Judicial Conference of the United States indetermining and publishing the COLA factor under theBankruptcy Code.30

An objection to automatic adjustments of exemptions is thatthe applicable amount of an exemption would differ from thatstated in the statute. Of course, this objection applies to any ofthe scores of dollar amounts provided by statute that aresubject to automatic COLA provisions. In bankruptcy, theexemptions are applied in a judicial proceeding in one time-frame, facilitating easy determination of the correctexemption amounts. To address the issue in state enforcementof judgments proceedings, the Judicial Council would berequired to publish a list of the personal property exemptionamounts, together with the date of the next scheduled cost-of-living adjustment. The list would be served on the debtoralong with a notice of levy.31 This would enable parties toquickly determine the appropriate amount and be on notice ofimpending changes where the notice is received near the timeof a scheduled adjustment. In practical terms, parties are farmore likely to see the list of exempt amounts published by theJudicial Council than the statute. In addition, exemptionclaims ultimately are determined in court proceedings, where

28. For an example of a section requiring that the Judicial Council computeand publish a cost of living adjustment, see Civ. Code § 1714.1(c) (parent orguardian liability for misconduct of minor).

29. See Section 681.030.

30. See 11 U.S.C. § 104.

31. See proposed amendments to Code Civ. Proc. § 700.010.


any issues concerning the correct amount of the exemptioncan be determined.32

Unlike bankruptcy, enforcement of a judgment may occurover a number of years, as the creditor discovers the debtor’sassets and seeks to apply them to the satisfaction of themoney judgment. Thus, exemptions in different amounts maybe applicable in the same case. But this is no different thanthe situation under existing law, because the Legislature maychange exemptions from time to time,33 and the amount of adebtor’s exemption is generally locked in when the creditor’slien attaches to the property.34 Thus, a creditor’s lien onspecific property, claimed to be exempt, will not be affectedby later increases in the exempt amount, whether bylegislative action or an automatic COLA.

If the proposed law becomes operative in 2004, the auto-matic triennial adjustment applicable to the bankruptcy-onlyexemptions would coincide with the triennial COLA opera-tive under the Bankruptcy Code, thereby maintaining consis-tent timing with federal law. The automatic triennial adjust-ment of the enforcement of judgments personal propertyexemptions would not take place until April 2007, becausethese exemptions will have been updated by statute in 2004,making a 2004 automatic adjustment redundant.

Exemptions from County Aid Reimbursement

Welfare and Institutions Code Section 17409 provides aspecialized exemption for reimbursement claims againstrecipients of county aid.35 These subsistence level exemptions

32. See generally Sections 703.510-703.610.

33. See also Section 703.060 (specific reservation of power to changeexemptions).

34. See Section 703.100.

35. For the text of this provision, see proposed amendments to Welf. & Inst.Code § 17409 infra.


have not been revised since 1959,36 with some exemptionsremaining unchanged since 1945.37

The proposed legislation would double these exemptamounts to make some adjustment for inflation, although thisis nowhere near the five to 10 times multiplier that would berequired to adjust for inflation since 1959 and 1945, respec-tively. The Commission is not proposing to subject theseexemptions to the automatic COLA provision, as they areoutside the mainstream of debtor-creditor law.

36. See 1959 Cal. Stat. ch. 1443, § 1 (funeral expenses and insurance cashvalue).

37. See 1945 Cal. Stat. ch. 636, § 1 (cash and personal effects).




Code Civ. Proc. § 681.030 (amended). Judicial Council rules

SECTION 1. Section 681.030 of the Code of CivilProcedure is amended to read:

681.030. (a) The Judicial Council may provide by rule forthe practice and procedure in proceedings under this title.

(b) The Judicial Council may prescribe the form of theapplications, notices, orders, writs, and other papers to beused under this title. The Judicial Council may prescribeforms in languages other than English. The timely completionand return of a Judicial Council form prescribed in a languageother than English has the same force and effect as the timelycompletion and return of an English language form.

(c) The Judicial Council shall prepare a form containingboth all of the following:

(1) A list of each of the federal and this state’s exemptionsfrom enforcement of a money judgment against a naturalperson.

(2) A citation to the relevant statute of the United States orthis state which creates each of the exemptions.

(3) Information on how to obtain the list of exemptionamounts published pursuant to subdivision (d) of Section703.150.

Comment. Paragraph (3) is added to Section 681.030(c) to reflect theautomatic triennial cost-of-living adjustment of personal propertyexemptions from enforcement of money judgments pursuant to Section703.150.

Code Civ. Proc. § 700.010 (amended). Notice of levy

SEC. 2. Section 700.010 of the Code of Civil Procedure isamended to read:


700.010. (a) At the time of levy pursuant to this article orpromptly thereafter, the levying officer shall serve a copy ofthe following on the judgment debtor:

(1) The writ of execution.(2) A notice of levy.(3) If the judgment debtor is a natural person, a copy of the

form listing exemptions prepared by the Judicial Councilpursuant to subdivision (c) of Section 681.030 and the list ofexemption amounts published pursuant to subdivision (d) ofSection 703.150.

(4) Any affidavit of identity, as defined in Section 680.135,for names of the debtor listed on the writ of execution.

(b) Service under this section shall be made personally orby mail.

Comment. Section 700.010 is amended to reflect the automatictriennial cost-of-living adjustment of personal property exemptions fromenforcement of money judgments pursuant to Section 703.150.

Code Civ. Proc. § 703.140 (amended). Alternate bankruptcyexemptions


703.140. (a) In a case under Title 11 of the United StatesCode, all of the exemptions provided by this chapter,including the homestead exemption, other than the provisionsof subdivision (b) are applicable regardless of whether thereis a money judgment against the debtor or whether a moneyjudgment is being enforced by execution sale or any otherprocedure, but the exemptions provided by subdivision (b)may be elected in lieu of all other exemptions provided bythis chapter, as follows:

(1) If a husband and wife are joined in the petition, theyjointly may elect to utilize the applicable exemptionprovisions of this chapter other than the provisions of


subdivision (b), or to utilize the applicable exemptions setforth in subdivision (b), but not both.

(2) If the petition is filed individually, and not jointly, for ahusband or a wife, the exemptions provided by this chapterother than the provisions of subdivision (b) are applicable,except that, if both the husband and the wife effectively waivein writing the right to claim, during the period the casecommenced by filing the petition is pending, the exemptionsprovided by the applicable exemption provisions of thischapter, other than subdivision (b), in any case commencedby filing a petition for either of them under Title 11 of theUnited States Code, then they may elect to instead utilize theapplicable exemptions set forth in subdivision (b).

(3) If the petition is filed for an unmarried person, thatperson may elect to utilize the applicable exemptionprovisions of this chapter other than subdivision (b), or toutilize the applicable exemptions set forth in subdivision (b),but not both.

(b) The following exemptions may be elected as provided insubdivision (a):

(1) The debtor’s aggregate interest, not to exceed seventeenthousand four hundred twenty-five dollars ($17,425) in value,in real property or personal property that the debtor or adependent of the debtor uses as a residence, in a cooperativethat owns property that the debtor or a dependent of thedebtor uses as a residence, or in a burial plot for the debtor ora dependent of the debtor.

(2) The debtor’s interest, not to exceed two thousand sevenhundred seventy-five dollars ($2,775) in value, in one motorvehicle.

(3) The debtor’s interest, not to exceed four hundred fiftydollars ($450) in value in any particular item, in householdfurnishings, household goods, wearing apparel, appliances,books, animals, crops, or musical instruments, that are held


primarily for the personal, family, or household use of thedebtor or a dependent of the debtor.

(4) The debtor’s aggregate interest, not to exceed onethousand one hundred fifty dollars ($1,150) in value, injewelry held primarily for the personal, family, or householduse of the debtor or a dependent of the debtor.

(5) The debtor’s aggregate interest, not to exceed in valuenine hundred twenty-five dollars ($925) plus any unusedamount of the exemption provided under paragraph (1), inany property.

(6) The debtor’s aggregate interest, not to exceed onethousand seven hundred fifty dollars ($1,750) in value, in anyimplements, professional books, or tools of the trade of thedebtor or the trade of a dependent of the debtor.

(7) Any unmatured life insurance contract owned by thedebtor, other than a credit life insurance contract.

(8) The debtor’s aggregate interest, not to exceed in valuenine thousand three hundred dollars ($9,300), in any accrueddividend or interest under, or loan value of, any unmaturedlife insurance contract owned by the debtor under which theinsured is the debtor or an individual of whom the debtor is adependent.

(9) Professionally prescribed health aids for the debtor or adependent of the debtor.

(10) The debtor’s right to receive any of the following:(A) A social security benefit, unemployment compensation,

or a local public assistance benefit.(B) A veterans’ benefit.(C) A disability, illness, or unemployment benefit.(D) Alimony, support, or separate maintenance, to the

extent reasonably necessary for the support of the debtor andany dependent of the debtor.

(E) A payment under a stock bonus, pension, profit-sharing,annuity, or similar plan or contract on account of illness,


disability, death, age, or length of service, to the extentreasonably necessary for the support of the debtor and anydependent of the debtor, unless all of the following apply:

(i) That plan or contract was established by or under theauspices of an insider that employed the debtor at the time thedebtor’s rights under the plan or contract arose.

(ii) The payment is on account of age or length of service.(iii) That plan or contract does not qualify under Section

401(a), 403(a), 403(b), 408, or 408A of the Internal RevenueCode of 1986.

(11) The debtor’s right to receive, or property that istraceable to, any of the following:

(A) An award under a crime victim’s reparation law.(B) A payment on account of the wrongful death of an

individual of whom the debtor was a dependent, to the extentreasonably necessary for the support of the debtor and anydependent of the debtor.

(C) A payment under a life insurance contract that insuredthe life of an individual of whom the debtor was a dependenton the date of that individual’s death, to the extent reasonablynecessary for the support of the debtor and any dependent ofthe debtor.

(D) A payment, not to exceed seventeen thousand fourhundred twenty-five dollars ($17,425), on account of personalbodily injury, not including pain and suffering orcompensation for actual pecuniary loss, of the debtor or anindividual of whom the debtor is a dependent.

(E) A payment in compensation of loss of future earnings ofthe debtor or an individual of whom the debtor is or was adependent, to the extent reasonably necessary for the supportof the debtor and any dependent of the debtor.

(c) Each dollar amount in effect under this section shall beincreased in accordance with the periodic adjustments ofsimilar exemptions provided under federal bankruptcy laws.


Comment. Section 703.140 is amended to delete subdivision (c),which is superseded by the automatic cost-of-living adjustment providedin Section 703.150.

Code Civ. Proc. § 703.150 (added). Automatic adjustment ofexemption amounts

SEC. 4. Section 703.150 is added to the Code of CivilProcedure, to read:

703.150 (a) On April 1, 2004, and at each three-yearinterval ending on April 1 thereafter, the dollar amounts ofexemptions provided in subdivision (b) of Section 703.140 ineffect immediately before that date shall be adjusted asprovided in subdivision (c).

(b) On April 1, 2007, and at each three-year interval endingon April 1 thereafter, the dollar amounts of exemptionsprovided in Article 3 (commencing with Section 704.010) ineffect immediately before that date shall be adjusted asprovided in subdivision (c).

(c) The Judicial Council shall determine the amount of theadjustment based on the change in the annual CaliforniaConsumer Price Index for All Urban Consumers, publishedby the Department of Industrial Relations, Division of LaborStatistics, for the most recent three-year period ending onDecember 31 preceding the adjustment, with each adjustedamount rounded to the nearest twenty-five dollars ($25).

(d) Beginning April 1, 2004, the Judicial Council shallpublish a list of the current dollar amounts of exemptionsprovided in subdivision (b) of Section 703.140 and in Article3 (commencing with Section 704.010), together with the dateof the next scheduled adjustment.

(e) Adjustments made under subdivision (a) do not applywith respect to cases commenced before the date of theadjustment, subject to any contrary rule applicable under thefederal Bankruptcy Code. The applicability of adjustmentsmade under subdivision (b) is governed by Section 703.050.


Comment. Section 703.150 provides a new automatic triennial cost-of-living adjustment (COLA) for personal property exemptionsapplicable to enforcement of judgments and in bankruptcy. Subdivision(a) supersedes former subdivision (c) of Section 703.140, whichcoordinated the bankruptcy-only exemptions in Section 703.140(b) withtriennial adjustments under the federal Bankruptcy Code. The automaticCOLA applicable to the bankruptcy-only exemptions in Section703.140(b) begins in 2004.

Under subdivision (b), the automatic COLA applicable to the Article 3enforcement of judgments exemptions (Sections 704.010-704.210) isdeferred until 2007, because these amounts are adjusted by statuteoperative January 1, 2004. For an exception to the adjustment providedin subdivision (b), see Section 704.090(b) (inmate trust fund exemptionas to crime victim’s claim).

The triennial adjustment period under this section is the same as thatprovided under the Bankruptcy Code. See 11 U.S.C. § 104(b)(1)(A). The$25 rounding factor in subdivision (c) is also drawn from federal law.See 11 U.S.C. § 104(b)(1)(B).

Subdivision (e) clarifies the application of adjusted exemptionamounts. As to bankruptcy, the rule is the same as provided by 11 U.S.C.§ 104(c). The rule as to adjusted exemption amounts in state enforcementof judgment proceedings is consistent with the general rule under thistitle.

See also Sections 681.030(c)(3) (list of exemption amounts publishedpursuant to subdivision (d) referenced in Judicial Council form), 700.010(list of exemption amounts published pursuant to subdivision (d) servedwith notice of levy).

Code Civ. Proc. § 704.010 (amended). Motor vehicles


704.010. (a) Any combination of the following is exempt inthe amount of one thousand nine hundred dollars ($1,900) twothousand three hundred dollars ($2,300):

(1) The aggregate equity in motor vehicles.(2) The proceeds of an execution sale of a motor vehicle.(3) The proceeds of insurance or other indemnification for

the loss, damage, or destruction of a motor vehicle.


(b) Proceeds exempt under subdivision (a) are exempt for aperiod of 90 days after the time the proceeds are actuallyreceived by the judgment debtor.

(c) For the purpose of determining the equity, the fairmarket value of a motor vehicle shall be determined byreference to used car price guides customarily used byCalifornia automobile dealers unless the motor vehicle is notlisted in such price guides.

(d) If the judgment debtor has only one motor vehicle and itis sold at an execution sale, the proceeds of the execution saleare exempt in the amount of one thousand nine hundreddollars ($1,900) two thousand three hundred dollars ($2,300)without making a claim. The levying officer shall consult andmay rely upon the records of the Department of MotorVehicles in determining whether the judgment debtor hasonly one motor vehicle. In the case covered by thissubdivision, the exemption provided by subdivision (a) is notavailable.

Comment. Section 704.010 is amended to adjust the exemptionamount for cost-of-living increases since the section was last amended in1995. See 1995 Cal. Stat. ch. 196, § 2. Adjusted amounts weredetermined by applying the California Consumer Price Index (August2002) for all urban consumers and rounding to the nearest $25. For futureautomatic triennial adjustments, see Section 703.150.

Code Civ. Proc. § 704.030 (amended). Materials for repair orimprovement of dwelling


704.030. Material that in good faith is about to be applied tothe repair or improvement of a residence is exempt if theequity in the material does not exceed two thousand dollars($2,000) two thousand four hundred twenty-five dollars($2,425) in the following cases:


(a) If purchased in good faith for use in the repair orimprovement of the judgment debtor’s principal place ofresidence.

(b) Where the judgment debtor and the judgment debtor’sspouse live separate and apart, if purchased in good faith foruse in the repair or improvement of the spouse’s principalplace of residence.


Code Civ. Proc. § 704.040 (amended). Jewelry, heirlooms, works ofart


704.040. Jewelry, heirlooms, and works of art are exempt tothe extent that the aggregate equity therein does not exceedfive thousand dollars ($5,000) six thousand seventy-fivedollars ($6,075).


Code Civ. Proc. § 704.060 (amended). Personal property used intrade, business, or profession


704.060. (a) Tools, implements, instruments, materials,uniforms, furnishings, books, equipment, one commercialmotor vehicle, one vessel, and other personal property are


exempt to the extent that the aggregate equity therein does notexceed:

(1) Five thousand dollars ($5,000) Six thousand seventy-fivedollars ($6,075), if reasonably necessary to and actually usedby the judgment debtor in the exercise of the trade, business,or profession by which the judgment debtor earns alivelihood.

(2) Five thousand dollars ($5,000) Six thousand seventy-fivedollars ($6,075), if reasonably necessary to and actually usedby the spouse of the judgment debtor in the exercise of thetrade, business, or profession by which the spouse earns alivelihood.

(3) Ten thousand dollars ($10,000) Twice the amount of theexemption provided in paragraph (1), if reasonably necessaryto and actually used by the judgment debtor and by the spouseof the judgment debtor in the exercise of the same trade,business, or profession by which both earn a livelihood. In thecase covered by this paragraph, the exemptions provided inparagraphs (1) and (2) are not available.

(b) If property described in subdivision (a) is sold at anexecution sale, or if it has been lost, damaged, or destroyed,the proceeds of the execution sale or of insurance or otherindemnification are exempt for a period of 90 days after theproceeds are actually received by the judgment debtor or thejudgment debtor’s spouse. The amount exempt under thissubdivision is the amount specified in subdivision (a) thatapplies to the particular case less the aggregate equity of anyother property to which the exemption provided bysubdivision (a) for the particular case has been applied.

(c) Notwithstanding subdivision (a), a motor vehicle is notexempt under subdivision (a) if there is a motor vehicleexempt under Section 704.010 which is reasonably adequatefor use in the trade, business, or profession for which theexemption is claimed under this section.


(d) Notwithstanding subdivisions (a) and (b):(1) The amount of the exemption for a commercial motor

vehicle under paragraph (1) or (2) of subdivision (a) is limitedto four thousand dollars ($4,000) four thousand eight hundredfifty dollars ($4,850).

(2) The amount of the exemption for a commercial motorvehicle under paragraph (3) of subdivision (a) is limited toeight thousand dollars ($8,000) twice the amount of theexemption provided by paragraph (1) of this subdivision.

Comment. Section 704.060 is amended to adjust the exemptionamount for cost-of-living increases since the section was last amended in1995. See 1995 Cal. Stat. ch. 196, § 5. Adjusted amounts weredetermined by applying the California Consumer Price Index (August2002) for all urban consumers and rounding to the nearest $25, exceptthat the amounts in subdivisions (a)(3) and (d)(2) are determined bydoubling the amounts in subdivisions (a)(1) and (d)(1), respectively.

Code Civ. Proc. § 704.080 (amended). Deposit account in whichsocial security or public benefit payments are directly deposited


704.080. (a) For the purposes of this section:(1) “Deposit account” means a deposit account in which

payments of public benefits or social security benefits aredirectly deposited by the government or its agent.

(2) “Social security benefits” means payments authorizedby the Social Security Administration for regular retirementand survivors’ benefits, supplemental security incomebenefits, coal miners’ health benefits, and disability insurancebenefits. “Public benefits” means aid payments authorizedpursuant to subdivision (a) of Section 11450 of the Welfareand Institutions Code, payments for supportive services asdescribed in Section 11323.2 of the Welfare and InstitutionsCode, and general assistance payments made pursuant toSection 17000.5 of the Welfare and Institutions Code.


(b) A deposit account is exempt without making a claim inthe following amount:

(1) One thousand dollars ($1,000) One thousand twohundred twenty-five dollars ($1,225) where one depositor isthe designated payee of the directly deposited public benefitspayments, and two thousand dollars ($2,000).

(2) Two thousand four hundred twenty-five dollars ($2,425)where one depositor is the designated payee of directlydeposited social security payments.

(2) (3) One thousand five hundred dollars ($1,500) O n ethousand eight hundred twenty-five dollars ($1,825) wheretwo or more depositors are the designated payees of thedirectly deposited public benefits payments, unless thosedepositors are joint payees of directly deposited payments thatrepresent a benefit to only one of the depositors, in whichcase the exempt amount is one thousand dollars ($1,000).Three thousand dollars ($3,000) exemption under paragraph(1) applies.

(4) Three thousand six hundred fifty dollars ($3,650) wheretwo or more depositors are the designated payees of directlydeposited social security payments, unless those depositorsare joint payees of directly deposited payments that representa benefit to only one of the depositors, in which case theexempt amount is two thousand dollars ($2,000) exemptionunder paragraph (2) applies.

(c) The amount of a deposit account that exceeds theexemption provided in subdivision (b) is exempt to the extentthat it consists of payments of public benefits or socialsecurity benefits.

(d) Notwithstanding Article 5 (commencing with Section701.010) of Chapter 3, when a deposit account is levied uponor otherwise sought to be subjected to the enforcement of amoney judgment, the financial institution that holds thedeposit account shall either place the amount that exceeds the


exemption provided in subdivision (b) in a suspense accountor otherwise prohibit withdrawal of that amount pendingnotification of the failure of the judgment creditor to file theaffidavit required by this section or the judicial determinationof the exempt status of the amount. Within 10 business daysafter the levy, the financial institution shall provide thelevying officer with a written notice stating (1) that thedeposit account is one in which payments of public benefitsor social security benefits are directly deposited by thegovernment or its agent and (2) the balance of the depositaccount that exceeds the exemption provided by subdivision(b). Promptly upon receipt of the notice, the levying officershall serve the notice on the judgment creditor. Service shallbe made personally or by mail.

(e) Notwithstanding the procedure prescribed in Article 2(commencing with Section 703.510), whether there is anamount exempt under subdivision (c) shall be determined asfollows:

(1) Within five days after the levying officer serves thenotice on the judgment creditor under subdivision (d), ajudgment creditor who desires to claim that the amount is notexempt shall file with the court an affidavit alleging that theamount is not exempt and file a copy with the levying officer.The affidavit shall be in the form of the notice of oppositionprovided by Section 703.560, and a hearing shall be set andheld, and notice given, as provided by Sections 703.570 and703.580. For the purpose of this subdivision, the “notice ofopposition to the claim of exemption” in Sections 703.570and 703.580 means the affidavit under this subdivision.

(2) If the judgment creditor does not file the affidavit withthe levying officer and give notice of hearing pursuant toSection 703.570 within the time provided in paragraph (1),the levying officer shall release the deposit account and shallnotify the financial institution.


(3) The affidavit constitutes the pleading of the judgmentcreditor, subject to the power of the court to permitamendments in the interest of justice. The affidavit is deemedcontroverted and no counteraffidavit is required.

(4) At a hearing under this subdivision, the judgment debtorhas the burden of proving that the excess amount is exempt.

(5) At the conclusion of the hearing, the court by order shalldetermine whether or not the amount of the deposit account isexempt pursuant to subdivision (c) in whole or in part andshall make an appropriate order for its prompt disposition. Nofindings are required in a proceeding under this subdivision.

(6) Upon determining the exemption claim for the depositaccount under subdivision (c), the court shall immediatelytransmit a certified copy of the order of the court to thefinancial institution and to the levying officer. If the orderdetermines that all or part of the excess is exempt undersubdivision (c), with respect to the amount of the excesswhich is exempt, the financial institution shall transfer theexempt excess from the suspense account or otherwise releaseany restrictions on its withdrawal by the judgment debtor. Thetransfer or release shall be effected within three business daysof the receipt of the certified copy of the court order by thefinancial institution.

(f) If the judgment debtor claims that a portion of theamount is exempt other than pursuant to subdivision (c), theclaim of exemption shall be made pursuant to Article 2(commencing with Section 703.510). If the judgment debtoralso opposes the judgment creditor’s affidavit regarding anamount exempt pursuant to subdivision (c), both exemptionsshall be determined at the same hearing, provided thejudgment debtor has complied with Article 2 (commencingwith Section 703.510).

Comment. Section 704.080 is amended to adjust the social securitypayments exemption amounts for cost-of-living increases since thesection was last amended in 1995. See 1995 Cal. Stat. ch. 196, § 6. The


public benefits exemption amounts are also adjusted for consistency withthe scheme enacted in 1998 of setting this exemption at 50% of the socialsecurity payments exemption (subject to rounding to nearest $25). See1998 Cal. Stat. ch. 290, § 1. Adjusted amounts were determined byapplying the California Consumer Price Index (August 2002) for allurban consumers and rounding to the nearest $25. For future automatictriennial adjustments, see Section 703.150.

Code Civ. Proc. § 704.090 (amended). Inmate’s trust account


704.090. (a) The funds of a judgment debtor confined in aprison or facility under the jurisdiction of the Department ofCorrections or the Department of the Youth Authority orconfined in any county or city jail, road camp, industrial farm,or other local correctional facility, held in trust for or to thecredit of the judgment debtor, in an inmate’s trust account orsimilar account by the state, county, or city, or any agencythereof, are exempt without making a claim in the amount ofone thousand dollars ($1,000) one thousand two hundredtwenty-five dollars ($1,225). If the judgment debtor ismarried, each spouse is entitled to a separate exemption underthis section or the spouses may combine their exemptions.

(b) Notwithstanding subdivision (a), if the judgment is for arestitution fine or order imposed pursuant to subdivision (a)of Section 13967 of the Government Code, as operative on orbefore September 28, 1994, or Section 1203.04 of the PenalCode, as operative on or before August 2, 1995, or Section1202.4 of the Penal Code, the funds held in trust for, or to thecredit of, a judgment debtor described in subdivision (a) areexempt in the amount of three hundred dollars ($300) withoutmaking a claim. The exemption provided in this subdivision isnot subject to adjustment under Section 703.150.

Comment. Subdivision (a) of Section 704.090 is amended to adjustthe exemption amount for cost-of-living increases since the section waslast amended in 1995. See 1995 Cal. Stat. ch. 196, § 2. Adjusted amounts


were determined by applying the California Consumer Price Index(August 2002) for all urban consumers and rounding to the nearest $25.For future automatic triennial adjustments, see Section 703.150.

Subdivision (b) is amended to provide an exception to the automatictriennial adjustment for this special type of exemption.

Code Civ. Proc. § 704.100 (amended). Life insurance, endowment,annuity policies


704.100. (a) Unmatured life insurance policies (includingendowment and annuity policies), but not the loan value ofsuch policies, are exempt without making a claim.

(b) The aggregate loan value of unmatured life insurancepolicies (including endowment and annuity policies) issubject to the enforcement of a money judgment but isexempt in the amount of eight thousand dollars ($8,000) ninethousand seven hundred dollars ($9,700). If the judgmentdebtor is married, each spouse is entitled to a separateexemption under this subdivision, and the exemptions of thespouses may be combined, regardless of whether the policiesbelong to either or both spouses and regardless of whether thespouse of the judgment debtor is also a judgment debtor underthe judgment. The exemption provided by this subdivisionshall be first applied to policies other than the policy beforethe court and then, if the exemption is not exhausted, to thepolicy before the court.

(c) Benefits from matured life insurance policies (includingendowment and annuity policies) are exempt to the extentreasonably necessary for the support of the judgment debtorand the spouse and dependents of the judgment debtor.



Welf. & Inst. Code § 17409 (amended). Exemptions from countyclaim against indigent

SEC. 12. Section 17409 of the Welfare and InstitutionsCode is amended to read:

17409. There shall be exempt from the transfers and grantsauthorized by Section 17109 and from execution on claimsunder Section 17403 against property acquired by persons forthe support of whom public moneys have been expended allof the following property:

(a) Cash to the amount of fifty dollars ($50) not exceedingone hundred dollars ($100).

(b) Personal effects and household furniture to the value offive hundred dollars ($500) not exceeding one thousanddollars ($1,000) in value.

(c) An interment space, crypt, or niche intended for theinterment of the applicant or recipient of aid.

(d) Funds placed in trust for funeral or burial expenses tothe extent that such funds do not exceed the sum of fivehundred dollars ($500) not exceeding one thousand dollars($1,000).

(e) Insurance policies having an actual cash surrender valueof not to exceed five hundred dollars ($500) not exceedingone thousand dollars ($1,000).

(f) Real or personal property of a recipient of publicassistance, with respect to aid or county hospital care grantedafter May 21, 1963.

(g) For a period of six months from the date of receipt, thecompensation received from a public entity which acquiresfor a public use a dwelling actually owned and occupied bythe recipient. Such compensation shall be exempt in theamount, over and above all liens and encumbrances, providedby Section 704.730 of the Code of Civil Procedure.

(h) Relocation benefits shall be exempt as provided bySection 704.180 of the Code of Civil Procedure.


No county shall withhold emergency medical or hospitalcare from any person pending the person giving security forreimbursement to the county for the care or hospitalization tobe provided to the person.

Comment. Section 17409 is amended to double the amount of theexemption values, which were originally set in 1945 and 1959. See 1945Cal. Stat. ch. 636, § 1 (enacting Welf. & Inst. Code § 2611) (cash andpersonal effects); 1959 Cal. Stat. ch. 1443, § 1 (funeral expenses,insurance cash value). This section is also amended to make technical,nonsubstantive revisions. In subdivision (f), the reference to May 21,1963, is deleted because it is obsolete.

2003] 145

STATE OF CALIFORNIA


RECOMMENDATION

Probate Code Technical Corrections

March 2003






Cite this report as Probate Code Technical Corrections, 33 Cal. L.Revision Comm’n Reports 145 (2003). This is part of publication #215[2002-2003 Recommendations].

2003] PROBATE CODE TECHNICAL CORRECTIONS 147

STATE OF CALIFORNIA


DAVID HUEBNER, ChairpersonFRANK KAPLAN, Vice ChairpersonDIANE F. BOYER-VINEJOYCE G. COOKASSEMBLY MEMBER ELLEN CORBETTDESIREE ICAZA KELLOGGSENATOR BILL MORROWEDMUND L. REGALIAWILLIAM E. WEINBERGER

March 7, 2003


This recommendation proposes technical corrections to the Pro-bate Code to address defects in numbering that have been broughtto the attention of the Law Revision Commission. It includes clari-fication of the “date of death valuation” provision of Probate CodeSections 21612 (share of omitted spouse) and 21623 (share ofomitted child).

The recommendation was prepared pursuant to ResolutionChapter 166 of the Statutes of 2002.




2003] 149

PROBATE CODE TECHNICAL CORRECTIONS

Numbering Corrections

This recommendation proposes technical corrections to theProbate Code to address defects in numbering that have beenbrought to the attention of the Law Revision Commission.

Clarification of “Date of Death Valuation”

If the maker of a will or trust marries after making the in-strument and neglects thereafter to amend it to provide for thesurviving spouse, the law gives the surviving spouse a shareof the decedent’s estate (unless it is proved that the decedentintended not to provide for the surviving spouse or providedfor the surviving spouse by other means).1 The amount of theomitted spouse’s share depends on the community or separateproperty character of the estate.

The omitted spouse’s share is taken proportionately fromthe shares of the other beneficiaries, based on the value of theestate at the date of death.2 The “date of death valuation”clause could be construed in such a way as to cause unin-tended results. If estate property declines substantially invalue between the date of death and the date of distribution,that could result in the omitted spouse taking a larger portionof the estate, and the direct beneficiaries of the decedent tak-ing a smaller portion of the estate, than they would otherwisebe entitled to.

That is not the intention of the date of death valuation pro-vision. Date of death valuation is used to determine the rela-tive portion of each decedent’s share that will be obligated,not the total value of the property to be distributed. Thestatute (and Comment) should be revised to state this moreclearly:

1. Prob. Code §§ 21610-21611.

2. Prob. Code § 21612(a)(2).


Prob. Code § 21612 (amended). Share of omittedspouse

21612. (a) Except as provided in subdivision (b), insatisfying a share provided by this chapter:

(1) The share will first be taken from the decedent’sestate not disposed of by will or trust, if any.

(2) If that is not sufficient, so much as may be necessaryto satisfy the share shall be taken from all beneficiaries ofdecedent’s testamentary instruments in proportion to thevalue they may respectively receive. This value shall bedetermined The proportion of each beneficiary’s share thatmay be taken pursuant to this subdivision shall bedetermined based on values as of the date of the decedent’sdeath.

(b) If the obvious intention of the decedent in relation tosome specific gift or devise or other provision of atestamentary instrument would be defeated by theapplication of subdivision (a), the specific devise or gift orprovision may be exempted from the apportionment undersubdivision (a), and a different apportionment, consistentwith the intention of the decedent, may be adopted.

Comment. Subdivision (a)(2) of Section 21612 isamended to make clear that it is the proportionateobligation of each beneficiary, rather than the total amountof the obligation, that is determined based on the date ofdeath valuation. Thus for example if there are twobeneficiaries entitled to receive property valued equally asof the date of death, the proportionate amount that will betaken from each is one-half the value of propertydistributed to each, regardless of the relative value of theproperty on the date of the distribution.

In a case where the share of the omitted spouse ispartially satisfied pursuant to subdivision (a)(1), theobligation of the beneficiaries for the remainder abatesproportionately. Thus if half the share of the omitted spouseis satisfied pursuant to subdivision (a)(1), the amount forwhich each of the beneficiaries is otherwise responsiblepursuant to subdivision (a)(2) is reduced by half.

A parallel change should be made to Probate Code Section21623, governing the share of an omitted child.



Prob. Code § 1004 (amended). Lis pendens

SECTION 1. Section 1004 of the Probate Code is amendedto read:

1004. If a proceeding under this code affects the title to orthe right of possession of real property, notice of thependency of the proceeding may be filed pursuant to Section409 Title 4.5 (commencing with Section 405) of Part 2 of theCode of Civil Procedure.

Comment. Section 1004 is amended to reflect relocation of the lispendens statutes from former Code of Civil Procedure Section 409 toCode of Civil Procedure Section 405 et seq. See 1992 Cal. Stat. ch. 883,§§ 1, 2.

Prob. Code § 2356.5 (amended). Conservatee with dementia

SEC. 2. Section 2356.5 of the Probate Code is amended toread:

2356.5. (a) The Legislature hereby finds and declares:(1) That people with dementia, as defined in the last

published edition of the “Diagnostic and Statistical Manual ofMental Disorders,” should have a conservatorship to servetheir unique and special needs.

(2) That, by adding powers to the probate conservatorshipfor people with dementia, their unique and special needs canbe met. This will reduce costs to the conservatee and thefamily of the conservatee, reduce costly administration bystate and county government, and safeguard the basic dignityand rights of the conservatee.

(3) That it is the intent of the Legislature to recognize thatthe administration of psychotropic medications has been, andcan be, abused by caregivers and, therefore, granting powersto a conservator to authorize these medications for the


treatment of dementia requires the protections specified inthis section.

(b) Notwithstanding any other provision of law, aconservator may authorize the placement of a conservatee in asecured perimeter residential care facility for the elderlyoperated pursuant to Section 1569.698 of the Health andSafety Code, or a locked and secured nursing facility whichspecializes in the care and treatment of people with dementiapursuant to subdivision (c) of Section 1569.691 of the Healthand Safety Code, and which has a care plan that meets therequirements of Section 87724 of Title 22 of the CaliforniaCode of Regulations, upon a court’s finding, by clear andconvincing evidence, of all of the following:

(1) The conservatee has dementia, as defined in the lastpublished edition of the “Diagnostic and Statistical Manual ofMental Disorders.”

(2) The conservatee lacks the capacity to give informedconsent to this placement and has at least one mental functiondeficit pursuant to subdivision (a) of Section 812 Section 811,and this deficit significantly impairs the person’s ability tounderstand and appreciate the consequences of his or heractions pursuant to subdivision (b) of Section 812 Section811.

(3) The conservatee needs or would benefit from a restrictedand secure environment, as demonstrated by evidencepresented by the physician or psychologist referred to inparagraph (3) of subdivision (f).

(4) The court finds that the proposed placement in a lockedfacility is the least restrictive placement appropriate to theneeds of the conservatee.

(c) Notwithstanding any other provision of law, aconservator of a person may authorize the administration ofmedications appropriate for the care and treatment of


dementia, upon a court’s finding, by clear and convincingevidence, of all of the following:

(1) The conservatee has dementia, as defined in the lastpublished edition of the “Diagnostic and Statistical Manual ofMental Disorders.”

(2) The conservatee lacks the capacity to give informedconsent to the administration of medications appropriate tothe care of dementia, and has at least one mental functiondeficit pursuant to subdivision (a) of Section 812 Section 811,and this deficit or deficits significantly impairs the person’sability to understand and appreciate the consequences of hisor her actions pursuant to subdivision (b) of Section 812Section 811.

(3) The conservatee needs or would benefit fromappropriate medication as demonstrated by evidencepresented by the physician or psychologist referred to inparagraph (3) of subdivision (f).

(d) Pursuant to subdivision (b) of Section 2355, in the caseof a person who is an adherent of a religion whose tenets andpractices call for a reliance on prayer alone for healing, thetreatment required by the conservator under subdivision (c)shall be by an accredited practitioner of that religion in lieu ofthe administration of medications.

(e) A conservatee who is to be placed in a facility pursuantto this section shall not be placed in a mental healthrehabilitation center as described in Section 5675 of theWelfare and Institutions Code, or in an institution for mentaldisease as described in Section 5900 of the Welfare andInstitutions Code.

(f) A petition for authority to act under this section shall begoverned by Section 2357, except:

(1) The conservatee shall be represented by an attorneypursuant to Chapter 4 (commencing with Section 1470) ofPart 1.


(2) The conservatee shall be produced at the hearing, unlessexcused pursuant to Section 1893.

(3) The petition shall be supported by a declaration of alicensed physician, or a licensed psychologist within thescope of his or her licensure, regarding each of the findingsrequired to be made under this section for any powerrequested, except that the psychologist has at least two yearsof experience in diagnosing dementia.

(4) The petition may be filed by any of the personsdesignated in Section 1891.

(g) The court investigator shall annually investigate andreport to the court every two years pursuant to Sections 1850and 1851 if the conservator is authorized to act under thissection. In addition to the other matters provided in Section1851, the conservatee shall be specifically advised by theinvestigator that the conservatee has the right to object to theconservator’s powers granted under this section, and thereport shall also include whether powers granted under thissection are warranted. If the conservatee objects to theconservator’s powers granted under this section, or theinvestigator determines that some change in the powersgranted under this section is warranted, the court shall providea copy of the report to the attorney of record for theconservatee. If no attorney has been appointed for theconservatee, one shall be appointed pursuant to Chapter 4(commencing with Section 1470) of Part 1. The attorneyshall, within 30 days after receiving this report, do one of thefollowing:

(1) File a petition with the court regarding the status of theconservatee.

(2) File a written report with the court stating that theattorney has met with the conservatee and determined that thepetition would be inappropriate.


(h) A petition to terminate authority granted under thissection shall be governed by Section 2359.

(i) Nothing in this section shall be construed to affect aconservatorship of the estate of a person who has dementia.

(j) Nothing in this section shall affect the laws that wouldotherwise apply in emergency situations.

(k) Nothing in this section shall affect current law regardingthe power of a probate court to fix the residence of aconservatee or to authorize medical treatment for anyconservatee who has not been determined to have dementia.

(l)(1) Until such time as the conservatorship becomessubject to review pursuant to Section 1850, this section shallnot apply to a conservatorship established on or before theeffective date of the adoption of Judicial Council forms thatreflect the procedures authorized by this section, or January 1,1998, whichever occurs first.

(2) Upon the adoption of Judicial Council forms that reflectthe procedures authorized by this section or January 1, 1998,whichever occurs first, this section shall apply to anyconservatorships established after that date.

Comment. Section 2356.5 is amended to correct incorrect sectionreferences.

Prob. Code § 3121 (amended). Petition

SEC. 3. Section 3121 of the Probate Code is amended toread:

3121. The petition shall set forth all of the followinginformation:

(a) The name, age, and residence of each spouse.(b) If one or both spouses is alleged to lack legal capacity

for the proposed transaction, a statement that the spouse has aconservator or a statement of the facts upon which theallegation is based.

(c) If there is a conservator of a spouse, the name andaddress of the conservator, the county in which the


conservatorship proceeding is pending, and the court numberof the proceeding.

(d) If a spouse alleged to lack legal capacity for theproposed transaction is a patient in or on leave of absencefrom a state institution under the jurisdiction of the StateDepartment of Mental Health or the State Department ofDevelopmental Services, the name and address of theinstitution.

(e) The names and addresses of all of the following persons:(1) Relatives within the second degree of each spouse

alleged to lack legal capacity for the proposed transaction.(2) If the petition is to provide gifts or otherwise affect

estate planning of the spouse who is alleged to lack capacity,as would be properly the subject of a petition under Article 10(commencing with Section 2580) of Chapter 6 of Part 4(substituted judgment) in the case of a conservatorship, thenames and addresses of the persons identified in Section2581.

(f) A sufficient description of the property that is the subjectof the proposed transaction.

(g) An allegation that the property is community propertyand, if the proposed transaction involves property in which aspouse also has a separate property interest, an allegation ofgood cause to include that separate property in thetransaction.

(h) The estimated value of the property.(i) The terms and conditions of the proposed transaction,

including the names of all parties thereto.(j) The relief requested.Comment. Section 3121 is amended to implement Section 3100(b)

(transaction involving separate property interest).

Prob. Code § 3144 (amended). Court order



3144. (a) The court may authorize the proposed transactionif the court determines all of the following:

(1) The property that is the subject of the proposedtransaction is community property of the spouses and, if theproposed transaction involves property in which a spousealso has a separate property interest, that there is good causeto include that separate property in the transaction.

(2) One of the spouses then has a conservator or otherwiselacks legal capacity for the proposed transaction.

(3) The other spouse either has legal capacity for theproposed transaction or has a conservator.

(4) Each of the spouses either (i) joins in or consents to theproposed transaction, (ii) has a conservator, or (iii) issubstantially unable to manage his or her own financialresources or resist fraud or undue influence. Substantialinability may not be proved by isolated incidents ofnegligence or improvidence.

(5) The proposed transaction is one that should beauthorized under this chapter.

(b) If the proposed transaction is to provide gifts orotherwise affect estate planning of the spouse who is allegedto lack capacity, as would be properly the subject of a petitionunder Article 10 (commencing with Section 2580) of Chapter6 of Part 4 (substituted judgment) in the case of aconservatorship, the court may authorize the transaction underthis chapter only if the transaction is one that the court wouldauthorize under that article.

(c) If the court determines under subdivision (a) that thetransaction should be authorized, the court shall so order andmay authorize the petitioner to do and perform all acts and toexecute and deliver all papers, documents, and instrumentsnecessary to effectuate the order.

(d) In an order authorizing a transaction, the court mayprescribe such terms and conditions as the court in its


discretion determines appropriate, including, but not limitedto, requiring joinder or consent of another person.

Comment. Section 3144 is amended to implement Section 3100(b)(transaction involving separate property interest).

Prob. Code § 6327 (amended). Appealable orders


6327. An appeal may be taken from any of the following:(a) Any order described in Section 7240 Part 3

(commencing with Section 1300) of Division 3 made pursuantto this chapter.

(b) An order making or refusing to make a determinationspecified in paragraph (1), (2), or (8) of subdivision (a) ofSection 6325.

(c) As provided in Section 17207 1304 for an order madepursuant to Section 6326.

Comment. Subdivision (a) of Section 6327 is amended to reflectrelocation of the estate administration appeals statutes from formerSection 7240 to Section 1300 et seq. See 1997 Cal. Stat. ch. 724, §§ 11,18.

Subdivision (c) is amended to reflect relocation of the trust appealsstatute from former Section 17207 to Section 1304. See 1997 Cal. Stat.ch. 724, §§ 11, 29.

Prob. Code § 8852 (amended). Inventory oath


8852. (a) The personal representative shall take andsubscribe an oath that the inventory contains a true statementof the property to be administered in the decedent’s estate ofwhich the personal representative has knowledge, andparticularly of money of the decedent and debts or demandsof the decedent against the personal representative. The oathshall be endorsed upon or attached to the inventory.


(b) If there is more than one personal representative, eachshall take and subscribe the oath. If the personalrepresentatives are unable to agree as to property to beincluded in the inventory, any personal representative maypetition for a court order determining whether the property isto be administered in the decedent’s estate. The determinationshall be made pursuant to the procedure provided in Chapter11 (commencing with Section 9860) of Part 5 Part 19(commencing with Section 850) of Division 2 or, if there is anissue of property belonging or passing to the survivingspouse, pursuant to Chapter 5 (commencing with Section13650) of Part 2 of Division 8.

Comment. Section 8852 is amended to reflect relocation (from formerSection 9860 et seq. to Section 850 et seq.) of the statutes relating toconveyance or transfer of property claimed to belong to the decedent oranother person. See 2001 Cal. Stat. ch. 49, §§ 1, 4.

Prob. Code § 9761 (amended). Partnership account


9761. If a partnership existed between the decedent andanother person at the time of the decedent’s death, onapplication of the personal representative, the court may orderany surviving partner to render an account pursuant to Section15043, 15510, or 15634, or 16807 of the Corporations Code.An order under this section may be enforced by the court’spower to punish for contempt.

Comment. Section 9761 is amended to reflect the repeal of formerCorporations Code Section 15043 and its replacement by provisions ofthe Uniform Partnership Act of 1994 relating to winding up partnershipbusiness. See 1996 Cal. Stat. ch. 1003, §§ 1.2, 2.

Prob. Code § 9884 (amended). Purchase of estate property



9884. This chapter does not prohibit the purchase ofproperty of the estate by the personal representative or thepersonal representative’s attorney pursuant to a contract inwriting made during the lifetime of the decedent if thecontract is one that can be specifically enforced and therequirements of Chapter 11 (commencing with Section 9860)Part 19 (commencing with Section 850) of Division 2 aresatisfied.

Comment. Section 9884 is amended to reflect relocation (from formerSection 9860 et seq. to Section 850 et seq.) of the statutes relating toconveyance or transfer of property claimed to belong to the decedent oranother person. See 2001 Cal. Stat. ch. 49, §§ 1, 4.

Prob. Code § 10151 (amended). Public auction sale contract


10151. (a) The personal representative may enter into awritten contract with any of the following:

(1) Where the public auction sale will be held in this state,an auctioneer who holds a valid license under Chapter 3.7(commencing with Section 5700) of Division 3 of theBusiness and Professions Code to conduct a public auctionsale and to secure purchasers by that method for any personalproperty of the estate to the extent authorized under Chapter3.7 (commencing with Section 5700) of Division 3 of theBusiness and Professions Code is qualified to conductbusiness under Title 2.95 (commencing with Section1812.600) of Part 4 of Division 3 of the Civil Code.

(2) Where the public auction sale will be held outside thisstate pursuant to an order made under Section 10254, anauctioneer who is legally permitted in the jurisdiction wherethe sale will be held to conduct a public auction sale and tosecure purchasers by that method for the personal propertyauthorized to be sold by public auction sale in that jurisdictionunder the court order.


(b) The contract shall be one that is legally enforceableunder the law of the jurisdiction where made.

(c) The contract may provide for payment to the auctioneerof a fee, commission, or other compensation out of theproceeds of sale and for reimbursement of expenses, but thecontract is binding and valid as against the estate only forsuch amounts as the court allows pursuant to Section 10167.No liability of any kind is incurred by the estate under thecontract or a sale unless the sale is approved by the court,except for the obligations of the estate to the purchaser ofpersonal property as to which title passes pursuant to Section10259 without court confirmation or approval. The personalrepresentative is not personally liable on the contract byreason of execution of the contract.

(d) The contract may provide that personal property of twoor more estates being administered by the same personalrepresentative may be sold at the same public auction sale.Items of personal property may be sold separately or in a lotwith other items from the same estate. A sale pursuant to thecontract shall be with reserve. The auctioneer shall complywith the instructions of the personal representative withrespect to withdrawal of items, risk of loss, place of delivery,warranties, and other matters.

Comment . Section 10151 is amended to reflect repeal of theAuctioneer and Auction Licensing Act (Bus. & Prof. Code § 5700 etseq.) and its replacement by the Auctioneer and Auction Companies law(Civ. Code § 1812.600 et seq.). See 1993 Cal. Stat. ch. 1170, §§ 1, 2.

Prob. Code § 10534 (amended). Continuation of partnerships andbusinesses


10534. (a) Subject to the partnership agreement and theprovisions of the Uniform Partnership Act (Chapter 1(commencing with Section 15001) of 1994 (Chapter 5


(commencing with Section 16100) of Title 2 of theCorporations Code), the personal representative has the powerto continue as a general partner in any partnership in whichthe decedent was a general partner at the time of death.

(b) The personal representative has the power to continueoperation of any of the following:

(1) An unincorporated business or venture in which thedecedent was engaged at the time of the decedent’s death.

(2) An unincorporated business or venture which waswholly or partly owned by the decedent at the time of thedecedent’s death.

(c) Except as provided in subdivision (d), the personalrepresentative may exercise the powers described insubdivisions (a) and (b) without giving notice of proposedaction under Chapter 4 (commencing with Section 10580).

(d) The personal representative shall comply with therequirements of Chapter 4 (commencing with Section 10580)if the personal representative continues as a general partnerunder subdivision (a), or continues the operation of anyunincorporated business or venture under subdivision (b), fora period of more than six months from the date letters are firstissued to a personal representative.

Comment. Section 10534 is amended to reflect repeal of the UniformPartnership Act and its replacement by the Uniform Partnership Act of1994. See 1996 Cal. Stat. ch. 1003, §§ 1.2, 2.

Prob. Code § 11952 (amended). Hearing on petition


11952. (a) Notice of the hearing on the petition shall begiven as provided in Section 1220 to the personalrepresentative and to the persons entitled to distribution of theundivided interests.

(b) At the hearing the persons entitled to distribution of theundivided interests shall be considered the parties to the


proceeding whether or not they have appeared or filed aresponsive pleading. No one shall be considered as a plaintiffor as a defendant.

(c) Any objection to the jurisdiction of the court shall bemade and resolved in the manner prescribed in Chapter 11(commencing with Section 9860) of Part 5 Part 19(commencing with Section 850) of Division 2.

Comment. Section 11952 is amended to reflect relocation (fromformer Section 9860 et seq. to Section 850 et seq.) of the statutes relatingto conveyance or transfer of property claimed to belong to the decedentor another person. See 2001 Cal. Stat. ch. 49, §§ 1, 4.

Prob. Code § 13601 (amended). Collection of salary or othercompensation


13601. (a) To collect salary or other compensation underthis chapter, an affidavit or a declaration under penalty ofperjury under the laws of this state shall be furnished to theemployer of the deceased spouse stating all of the following:

(1) The name of the decedent.(2) The date and place of the decedent’s death.(3) Either of the following, as appropriate:(A) “The affiant or declarant is the surviving spouse of the

decedent.”(B) “The affiant or declarant is the guardian or conservator

of the estate of the surviving spouse of the decedent.”(4) “The surviving spouse of the decedent is entitled to the

earnings of the decedent under the decedent’s will or byintestate succession and no one else has a superior right to theearnings.”

(5) “No proceeding is now being or has been conducted inCalifornia for administration of the decedent’s estate.”

(6) “Sections 13600 to 13605, inclusive, of the CaliforniaProbate Code require that the earnings of the decedent,


including compensation for unused vacation, not in excess offive thousand dollars ($5,000) net, be paid promptly to theaffiant or declarant.”

(7) “Neither the surviving spouse, nor anyone acting onbehalf of the surviving spouse, has a pending request tocollect compensation owed by another employer for personalservices of the decedent under Sections 13600 to 13605,inclusive, of the California Probate Code.”

(8) “Neither the surviving spouse, nor anyone acting onbehalf of the surviving spouse, has collected anycompensation owed by an employer for personal services ofthe decedent under Sections 13600 to 13605, inclusive, of theCalifornia Probate Code except the sum of ____ dollars($____) which was collected from ____.”

(9) “The affiant or declarant requests that he or she be paidthe salary or other compensation owed by you for personalservices of the decedent, including compensation for unusedvacation, not to exceed five thousand dollars ($5,000) net,less the amount of ____ dollars ($____) which was previouslycollected.”

(10) “The affiant or declarant affirms or declares underpenalty of perjury under the laws of the State of Californiathat the foregoing is true and correct.”

(c) (b) Reasonable proof of the identity of the survivingspouse shall be provided to the employer. If a guardian orconservator is acting for the surviving spouse, reasonableproof of the identity of the guardian or conservator shall alsobe provided to the employer. Proof of identity that issufficient under Section 13104 is sufficient proof of identityfor the purposes of this subdivision.

(d) (c) If a person presenting the affidavit or declaration is aperson claiming to be the guardian or conservator of the estateof the surviving spouse, the employer shall be provided withreasonable proof, satisfactory to the employer, of the


appointment of the person to act as guardian or conservator ofthe estate of the surviving spouse.

Comment . Section 13601 is amended to correct subdivisionenumeration. It was incorrectly enumerated on enactment. See 1990 Cal.Stat. ch. 79, § 14.

Prob. Code § 19054 (amended). When notice is excused


19054. Notwithstanding Section 19050, the trustee need notgive notice to a creditor even though the trustee hasknowledge of the creditor if either of the following conditionsis satisfied:

(a) The creditor has filed a claim as provided in this part.(b) The creditor has demanded payment and the trustee

elects to treat the demand as a claim under Section 1915319154.

Comment. Section 19054 is amended to correct an incorrect cross-reference. See Section 19154 (election to treat demand as claim).

Prob. Code § 21401 (amended). Abatement


21401. Except as provided in Sections 6562 21612 (omittedspouse) and 6573 21623 (omitted children) and in Division 10(commencing with Section 20100) (proration of taxes), sharesof beneficiaries abate as provided in this part for all purposes,including payment of the debts, expenses, and chargesspecified in Section 11420, satisfaction of gifts, and paymentof expenses on specifically devised property pursuant toSection 12002, and without any priority as between real andpersonal property.

Comment. Section 21401 is amended to reflect relocation of formerSection 6562 to Section 21612 (via former Section 26112) (share ofomitted spouse) and of former Section 6573 to Section 21623 (share ofomitted child). See 1997 Cal. Stat. ch. 724, §§ 17, 34.


Prob. Code § 26112 (renumbered and amended). Share of omittedspouse

SEC. 15. Section 26112 of the Probate Code is renumberedand amended, to read:

26112 21612. (a) Except as provided in subdivision (b), insatisfying a share provided by this chapter:

(1) The share will first be taken from the decedent’s estatenot disposed of by will or trust, if any.

(2) If that is not sufficient, so much as may be necessary tosatisfy the share shall be taken from all beneficiaries ofdecedent’s testamentary instruments in proportion to thevalue they may respectively receive. This value shall bedetermined The proportion of each beneficiary’s share thatmay be taken pursuant to this subdivision shall be determinedbased on values as of the date of the decedent’s death.

(b) If the obvious intention of the decedent in relation tosome specific gift or devise or other provision of atestamentary instrument would be defeated by the applicationof subdivision (a), the specific devise or gift or provision maybe exempted from the apportionment under subdivision (a),and a different apportionment, consistent with the intention ofthe decedent, may be adopted.

Comment. Former Section 26112 is renumbered as 21612. It wasincorrectly numbered on enactment. See 1997 Cal. Stat. ch. 724, § 34.

Subdivision (a)(2) of Section 21612 is amended to make clear that it isthe proportionate obligation of each beneficiary, rather than the totalamount of the obligation, that is determined based on the date of deathvaluation. Thus for example if there are two beneficiaries entitled toreceive property valued equally as of the date of death, the proportionateamount that will be taken from each is one-half the value of propertydistributed to each, regardless of the relative value of the property on thedate of the distribution.

In a case where the share of the omitted spouse is partially satisfiedpursuant to subdivision (a)(1), the obligation of the beneficiaries for theremainder abates proportionately. Thus if half the share of the omittedspouse is satisfied pursuant to subdivision (a)(1), the amount for whicheach of the beneficiaries is otherwise responsible pursuant to subdivision(a)(2) is reduced by half.


Prob. Code § 21623 (amended). Share of omitted child


21623. (a) Except as provided in subdivision (b), insatisfying a share provided by this chapter:

(1) The share will first be taken from the decedent’s estatenot disposed of by will or trust, if any.

(2) If that is not sufficient, so much as may be necessary tosatisfy the share shall be taken from all beneficiaries ofdecedent’s testamentary instruments in proportion to thevalue they may respectively receive. This value shall bedetermined The proportion of each beneficiary’s share thatmay be taken pursuant to this subdivision shall be determinedbased on values as of the date of the decedent’s death.

(b) If the obvious intention of the decedent in relation tosome specific gift or devise or other provision of atestamentary instrument would be defeated by the applicationof subdivision (a), the specific devise or gift or provision of atestamentary instrument may be exempted from theapportionment under subdivision (a), and a differentapportionment, consistent with the intention of the decedent,may be adopted.

Comment. Subdivision (a)(2) of Section 21623 is amended to makeclear that it is the proportionate obligation of each beneficiary, ratherthan the total amount of the obligation, that is determined based on thedate of death valuation. Thus for example if there are two beneficiariesentitled to receive property valued equally as of the date of death, theproportionate amount that will be taken from each is one-half the valueof property distributed to each, regardless of the relative value of theproperty on the date of the distribution.

In a case where the share of the omitted child is partially satisfiedpursuant to subdivision (a)(1), the obligation of the beneficiaries for theremainder abates proportionately. Thus if half the share of the omittedchild is satisfied pursuant to subdivision (a)(1), the amount for whicheach of the beneficiaries is otherwise responsible pursuant to subdivision(a)(2) is reduced by half.


2003] 169

STATE OF CALIFORNIA


RECOMMENDATION

Statutes Made Obsolete by Trial CourtRestructuring: Part 2

March 2003






Cite this report as Statutes Made Obsolete by Trial Court Restructur-ing: Part 2, 33 Cal. L. Revision Comm’n Reports 169 (2003). This ispart of publication #215 [2002-2003 Recommendations].

2003] TRIAL COURT RESTRUCTURING: PART 2 171

STATE OF CALIFORNIA


DAVID HUEBNER, ChairpersonFRANK KAPLAN, Vice ChairpersonDIANE F. BOYER-VINEJOYCE G. COOKASSEMBLY MEMBER ELLEN CORBETTDESIREE ICAZA KELLOGGSENATOR BILL MORROWEDMUND L. REGALIAWILLIAM E. WEINBERGER

March 7, 2003


In 2002, the Law Revision Commission proposed the amend-ment or repeal of numerous obsolete constitutional and statutoryprovisions to reflect the restructuring of the trial court system thatoccurred in California during the late 1990’s. Many other statuteswere in need of amendment or repeal but were not included in the2002 recommendation because they were not yet ripe for revisionor, although ripe for revision, they required more time and care toaddress. This recommendation proposes additional cleanup ofstatutes made obsolete by trial court restructuring.

This recommendation was prepared pursuant to GovernmentCode Section 71674.




2003] 173

STATUTES MADE OBSOLETE BY TRIAL COURTRESTRUCTURING: PART 2

BACKGROUND

Trial Court Restructuring1

The trial court system in California was significantlyrestructured during the late 1990’s. The first major trial courtrestructuring event occurred in 1997 with the passage of theLockyer-Isenberg Trial Court Funding Act.2 That legislationconsolidated funding of trial court operations at the state leveland established a decentralized system of trial courtmanagement.3

The next major event occurred on June 2, 1998, when thevoters of California approved Proposition 220,4 providing forthe unification of municipal and superior courts in a county.5As of February 8, 2001, the courts in all of California’s 58counties have unified.6

Effective January 1, 2001, a statewide employment struc-ture for trial court employees, officers and other personnelwas implemented. Under the Trial Court Employment Protec-

1. For a more detailed review of the major trial court restructuring events,see Statutes Made Obsolete by Trial Court Restructuring: Part 1, 32 Cal. L.Revision Comm’n Reports 1 (2002).

2. 1997 Cal. Stat. ch. 850.

3. See generally Gov’t Code §§ 77000-77655.

4. Proposition 220 became operative the day after the election. Cal. Const.art. XVIII, § 4.

5. Former Cal. Const. art. VI, § 5(e).

6. On November 5, 2002, the voters approved Proposition 48 (operativeNov. 6, 2002), amending the California Constitution to reflect unification of thetrial courts. See Cal. Const. art. VI, §§ 1 (judicial power), 6 (Judicial Council), 8(Commission on Judicial Performance), 10 (original jurisdiction), 15(qualifications of judges), 16 (election of judges), and 23 (transitional provi-sion); see also former Cal. Const. art. VI, § 5 (municipal court).


tion and Governance Act,7 trial court employees are employ-ees of the court (not of the state or county) and each trialcourt has control over personnel matters.

Role of Law Revision Commission

As part of the Trial Court Employment Protection andGovernance Act, the Legislature directed the California LawRevision Commission to recommend the repeal of statutesmade obsolete by trial court funding reform, trial court unifi-cation, and trial court employment reform.8 The recommenda-tion was due by January 1, 2002.

The Commission submitted its Recommendation onStatutes Made Obsolete by Trial Court Restructuring: Part 19

(hereafter the “2002 recommendation”) in response to the leg-islative directive. The recommendation proposed the amend-ment and repeal of hundreds of obsolete constitutional andstatutory provisions. It was not possible, however, to dealwith all statutes made obsolete by trial court restructuring.Some provisions were not addressed because stakeholdershad not yet reached agreement on key issues, further researchwas necessary in light of the complexity of the law, or addi-tional time was required to prepare appropriate revisions dueto the large volume of material involved. Consequently, theJanuary 1, 2002, deadline was removed from the statute toallow the Commission to continue its work in this area and

7. See Gov’t Code §§ 71600-71675.

8. Gov’t Code § 71674.

9. 32 Cal. L. Revision Comm’n Reports 1 (2002). Legislation implementingthe Commission’s statutory recommendations was enacted in 2002, effectiveJanuary 1, 2003. See 2002 Cal. Stat. ch. 784 (SB 1316). A resolutionimplementing the Commission’s recommended constitutional revisions wasadopted by the Legislature (ACA 15) and approved by the voters on November5, 2002 (Prop. 48, operative Nov. 6, 2002).


recommend further cleanup of the statutes from time totime.10

This recommendation proposes additional reforms tostatutes made obsolete by trial court restructuring. As before,the recommendation addresses some but not all of the statutesin need of revision. The stakeholders have made significantprogress in resolving a number of substantive and fiscalissues. However, some key issues remain unsettled.11 In addi-tion, several of the remaining issues and references are com-plex and require additional research and analysis.12 TheCommission will recommend further reforms from time totime as warranted.

MATTERS COVERED IN THISRECOMMENDATION

Trial Court Sessions and Facilities

Sessions. Government Code Section 69645, effective Jan-uary 1, 2003,13 authorizes each trial court to determine thenumber and location of sessions of the court.14 With this gen-eral grant of authority to superior courts, most of the existingsessions statutes can be repealed or amended.

Section 69645 was inadvertently located in an article per-taining to superior court districts. Only Los Angeles County isdivided into superior court districts.15 Therefore, the proposed

10. See 2002 Cal. Stat. ch. 784, § 360.

11. For example, court reporter compensation, judicial benefits, and court-related fees and fines paid to counties.

12. For example, concurrent jurisdiction and local venue.

13. 2002 Cal. Stat. ch. 1008, § 25.

14. It also authorizes a session of the superior court to be held outside of thecounty of the court under certain circumstances.

15. The proposed law would repeal the existing article pertaining to superiorcourt districts (Gov’t Code §§ 69640-69650) and replace it with a new article


law would renumber Section 69645 as Government CodeSection 69740.16

The proposed law would also repeal Government CodeSection 69741 and Sections 69790 through 69800 as obsolete.Section 69741 requires that regular sessions be held com-mencing on the first Mondays of January, April, July, andOctober. That statute further provides that a superior courtmay hold special sessions at such other times as may beprescribed by the judges of the court, except that in the Cityand County of San Francisco the presiding judge shallprescribe the times of holding special sessions. Sections69790 through 69800 authorize extra sessions of the superiorcourt. Historically, extra sessions were held when a needarose in a particular county for a judge from another county topreside over a session of the hosting court.

The distinction among regular, special, and extra sessions iscontrary to the modern concept that courts are continuouslyopen and may hold session at any time except as specificallyprohibited by law.17 The times specified for the holding ofregular sessions are anachronistic and do not reflect the cur-rent realities of the judicial system in California. In addition,Article VI, Section 6, of the California Constitutionauthorizes the Chief Justice of the California Supreme Court,as Chair of the Judicial Council, to assign judges to sit oncourts in other counties.18

Facilities. The location of a particular session is dependent,to a large degree, on the existence and maintenance of a courtfacility in the area. The availability and adequacy of facilities

(Gov’t Code § 69640) authorizing the Los Angeles County Superior Court toestablish superior court districts by local rule. See “Proposed Legislation” infra.

16. See proposed addition of Gov’t Code § 69740 infra.

17. See Code Civ. Proc. §§ 74, 133, 134.

18. See also Gov’t Code § 69741.5 (“There may be as many sessions of a su-perior court, at the same time, as there are judges elected, appointed or assignedthereto.”).


for holding a court session at a specific location is a consider-ation that Section 69645 requires a court to take into account.

Court facilities have historically been county structures. In2002, however, the Legislature enacted the Trial Court Facili-ties Act,19 which will unite responsibility for trial court opera-tions and facilities in the state. Under the Act, the transfer ofresponsibility for the funding and operation of trial courtfacilities will be negotiated on a building-by-building basisbetween the state and each county from July 1, 2003, throughJune 30, 2007.20

Inasmuch as the transfer of responsibility will be county andbuilding specific — and may not be completed until 2007 —it is premature to revise facilities provisions at this time. Untilthe transfers are complete, the existing statutes are not obso-lete. Furthermore, even though general policies have beenestablished, the details of each transfer are still subject tonegotiation and may vary from county to county. TheCommission will continue to monitor the situation andpropose appropriate revisions in the future.

Trial Court Coordination

Several statutes pertain to the coordination of operations ofthe municipal and superior courts in a county.21 The statutesare no longer necessary due to unification of the courts. Theywould be repealed.22

Jury Commissioners

Pursuant to Code of Civil Procedure Section 195, everycounty has a jury commissioner who is appointed by the

19. 2002 Cal. Stat. ch. 1082, § 4 (eff. Jan. 1, 2003).

20. Id.

21. Gov’t Code §§ 68112, 68112.5, 68114, 68114.5, 68114.6, 68114.7,68114.9.

22. Government Code Section 68114.7 is not proposed for repeal. It includesprovisions regarding judicial benefits, which are still unsettled.


judges of the superior court. The jury commissioner isprimarily responsible for managing the trial court jurysystem, but may also perform duties with regard to theselection of jurors for grand juries and juries of inquest.

Jury commissioner references appear in provisions of theCode of Civil Procedure, Government Code, and Penal Code.The proposed legislation includes revisions to the jury com-missioner provisions and to Penal Code statutes relating togrand jury selection.23 The proposed revisions would lodgeselection-related functions with the jury commissioner ratherthan with the county clerk or court clerk. Designation of thejury commissioner as the responsible officer with regard to allgrand jury selection functions is consistent with other grandjury selection provisions,24 the Trial Court Funding Act,25

Code of Civil Procedure Section 195, and Judicial Councilstandards.26

Other Issues

Bail schedules. Penal Code Section 1269b establishes a pro-cedure for the preparation, adoption, and annual revision ofuniform countywide bail schedules by superior and municipalcourt judges. The proposed law would remove the municipalcourt references and provide for one bail schedule for all bail-able crimes (except Vehicle Code infractions). The proposalwould also permit superior court judges to adopt a local rule

23. See proposed amendments to Penal Code §§ 896, 900, 904, 908, 908.1,908.2 infra.

24. Penal Code §§ 903-903.4.

25. See Gov’t Code § 77003. Under Rule 810(d), Function 2, of the Califor-nia Rules of Court, the “salaries, wages, and benefits of jury commissioner andjury services staff (including selection of grand jury)” are allowable court opera-tions costs. See also Cal. R. Ct. 810(b) (grand jury selection not excluded fromdefinition of “court operations”).

26. Section 17 of the Standards of Judicial Administration (selection of regu-lar grand jury) provides for the jury commissioner to prepare a list of qualifiedcandidates to be considered for nomination.


of court governing the procedures for the preparation, adop-tion, and annual revision of the bail schedule, subject to adefault procedure in the event a local rule is not adopted.27

Juvenile court referees. Welfare and Institutions Code Sec-tion 247 provides for the appointment of a juvenile court ref-eree by the presiding judge of the juvenile court.28 The pro-posed law would repeal that statute. Under the Trial CourtEmployment Protection and Governance Act, the trial courtappoints subordinate judicial officers who serve at thepleasure of the court.29 That statute also requires the JudicialCouncil to prescribe minimum qualifications and training re-quirements for subordinate judicial officers.30 A conformingchange would be made to Government Code Section 71622 tomake clear that the court’s authority to appoint and terminatea subordinate judicial officer includes the authority to dele-gate the appointment or termination decisions (e.g., to thepresiding judge of the juvenile court).31

Local court rules. Code of Civil Procedure Section 575.1governs the preparation and distribution of local rules ofcourt. The proposed law would amend Section 575.1 to beconsistent with the approach used in California Rule of Court981, as amended effective January 1, 2003, regarding thepreparation of and public access to local rules. The proposedlaw would also eliminate a municipal court reference to re-flect trial court unification.32

27. See proposed amendment to Penal Code § 1269b infra.

28. The section also provides that the referee serves at the pleasure of the pre-siding judge. With exceptions, the section requires that the referee have beenadmitted to practice law in California for at least five years.

29. Gov’t Code § 71622.

30. The Judicial Council has promulgated a rule governing the qualificationsof a subordinate judicial officer, which is effective January 1, 2003. See Cal. R.Ct. 6.660.

31. See proposed amendment to Gov’t Code § 71622 infra.

32. See proposed amendment to Code Civ. Proc. § 575.1 infra.


Traffic hearing officers. References to “traffic hearing offi-cers” in a number of statutes would be revised to reflect theredesignation of traffic hearing officers as “juvenile hearingofficers.”33

Chaptered out provisions. Some revisions that wereproposed in the Commission’s 2002 recommendation andincluded in the implementing legislation were “chaptered out”by conflicting bills introduced in the same legislative session.Those proposed revisions are reintroduced in thisrecommendation.34

Technical revisions. Other technical cleanup revisionswould be made.35

CONCLUSION

This recommendation does not purport to deal with all re-maining statutes made obsolete by trial court restructuring.The Commission will continue to propose reforms addressingobsolete statutes as issues are resolved and time warrants. Thefact that this recommendation does not address a particularstatute should not be construed to indicate that the Commis-sion has decided that the statute should be preserved over thegeneral restructuring provisions. The statute may be the sub-ject of a future recommendation by the Commission.

33. See 1997 Cal. Stat. ch. 679.

34. See proposed amendments to Gov’t Code §§ 20437, 71081, 71601 &Penal Code §§ 830.1, 3075 infra.

35. For example, the proposed law would continue an effort begun in the2002 recommendation to fix references to “the judge or judges” of the superiorcourt. As a result of unification, every superior court now has at least two judge-ships. See Gov’t Code § 69580 et seq. (number of judges). Where a court hasonly one judge due to a vacancy or otherwise, a reference to the judges of thecourt means the sole judge of the court. See Gov’t Code § 13 (plural includessingular).


Contents

CODE OF CIVIL PROCEDURE .............................. 185

§ 73c (amended). Place of hearings relating to sale, exchange, ordisposition of property of savings and loanassociation ............................... 185

§ 73d (amended). Expenses of court officials in attendinghearings relating to sale, exchange, or disposition ofproperty of savings and loan association ............ 186

§ 90 (amended). Limitation of general law by economiclitigation procedures ......................... 187

§ 116.250 (amended). Small claims court sessions............. 187§ 116.310 (amended). Pleadings and pretrial discovery in small

claims case ............................... 187§ 196 (amended). Inquiry into qualifications................. 188§ 208 (amended). Summoning prospective jurors ............. 189§ 431.30 (amended). Form and content of answer ............. 189§ 575.1 (amended). Local court rules ..................... 191

ELECTIONS CODE...................................... 192

§ 16603 (amended). Judgment .......................... 192

FAMILY CODE ........................................ 193

§ 1811 (amended). Assignment of judges................... 193

FINANCIAL CODE ...................................... 193

§ 17647 (amended). Place of hearings ..................... 193

FISH AND GAME CODE .................................. 194

§ 12157 (amended). Forfeiture for violations ................ 194

FOOD AND AGRICULTURAL CODE .......................... 196

§ 21856 (amended). Forfeiture of device or apparatus .......... 196

GOVERNMENT CODE ................................... 197

§ 20437 (amended). “County peace officer” as includingconstable, marshal, and deputy .................. 197

§ 24151 (amended). Amount of supervisor’s bond............. 198§ 24250.1 (amended). Offices in cities where sessions of

superior court held .......................... 198§ 40230 (amended). Purpose of census .................... 199§ 68079 (amended). Provision of superior court seal ........... 199§ 68100 (amended). Appearances at appointed location of

superior court ............................. 200


§ 68108 (amended). Unpaid furlough days .................. 200§ 68112 (repealed). Trial court coordination plans ............. 201§ 68112.5 (repealed). Cross-assignment of subordinate judicial

officers ................................. 204§ 68114 (repealed). Single presiding judge.................. 204§ 68114.5 (repealed). Single executive committee ............. 205§ 68114.6 (repealed). Powers and duties of court executive

officer .................................. 205§ 68114.9 (repealed). Cross-deputization ................... 207§ 68620 (amended). Delay reduction program................ 207§ 69595.5 (repealed). Sessions in San Diego County ........... 208§§ 69640-69650 (repealed). Superior court districts ............ 209§ 69640 (added). Superior court districts in Los Angeles

County.................................. 209§ 69740 (repealed). Population of city..................... 210§ 69740 (added). Number and location of trial court sessions...... 210§ 69741 (repealed). Regular and special sessions.............. 211§ 69742 (repealed). Sessions in cities of 35,000 and eight miles

distant .................................. 212§ 69743 (repealed). Additional sessions.................... 212§ 69744 (repealed). Sessions at other locations ............... 213§ 69744.5 (repealed). Sessions in unincorporated territory........ 213§ 69745 (repealed). Sessions in cities of 7,000 and 55 miles

distant .................................. 214§ 69745.5 (repealed). Sessions in unincorporated area and 55

miles distant .............................. 214§ 69746 (repealed). Sessions in cities of 20,000 and 30 miles

distant .................................. 214§ 69746.5 (repealed). Sessions in judicial district in Kern

County.................................. 215§ 69747 (repealed). Sessions in cities of 50,000 and six miles

distant .................................. 215§ 69748 (repealed). Sessions in cities of 10,000 and 18 miles

distant .................................. 216§ 69748.1 (repealed). Sessions in cities of 9,700 and 70 miles

distant .................................. 216§ 69749 (repealed). Fourteen mile limit .................... 217§ 69749.2 (repealed). Sessions prior to ninety-first day after

adjournment of 1959 legislative session ............ 218§ 69749.3 (repealed). Sessions in Palm Springs............... 218§ 69749.4 (repealed). Sessions in Indian Wells Valley area of

northeast Kern County ....................... 218§ 69751.5 (repealed). Sessions in cities of 7,000 and 30 miles

distant .................................. 219


§ 69752 (repealed). Sessions in cities other than county seat ...... 219§§ 69790-69800 (repealed). Extra sessions.................. 220§ 69841 (amended). Court clerk’s attendance ................ 220§ 69891 (repealed). Appointment and salary of stenographer or

secretary................................. 221§ 69893 (repealed). Secretary performing duties of jury

commissioner ............................. 221§ 69894.2 (repealed). Additional superior court commissioners,

officers, and employees....................... 222§ 69902.5 (repealed). Inclusion in retirement system ........... 223§ 71081 (repealed). Eligibility of municipal court judge to

multiple courts............................. 223§§ 71340-71342 (repealed). Sessions of court................ 224§ 71601 (amended). Definitions ......................... 224§ 71622 (amended). Subordinate judicial officers ............. 227§ 73648 (repealed). Sessions within the El Cajon Judicial

District.................................. 228§ 74748 (repealed). Sessions within the South Bay Judicial

District.................................. 229§§ 74920-74920.6 (repealed). Tulare County Municipal Court

District.................................. 229

HARBORS AND NAVIGATION CODE ......................... 229

§ 4042 (amended). Harbor commissioners .................. 229

PENAL CODE ......................................... 230

§ 825 (amended). Appearance before magistrate .............. 230§ 830.1 (amended). Peace officers ....................... 231§ 853.6a (amended). Appearance before juvenile court.......... 233§ 896 (amended). Selection of grand jurors ................. 234§ 900 (amended). Duties of jury commissioner ............... 235§ 903 (repealed). Applicability of article ................... 236§ 904 (amended). Drawing of grand jury ................... 237§ 908 (amended). Selection of grand jury................... 237§ 908.1 (amended). Filling of vacancies.................... 238§ 908.2 (amended). Staggered selection procedure............. 239§ 1269b (amended). Bail.............................. 240§ 3075 (amended). Board of parole commissioners ............ 243

PUBLIC UTILITIES CODE ................................. 244

§ 7814 (amended). Penalty for overcharge of fare ............. 244

STREETS AND HIGHWAYS CODE ........................... 244

§ 30865 (amended). Estimate by commissioners .............. 244


VEHICLE CODE ....................................... 245

§ 1816 (amended). Report of offenses ..................... 245§ 13105 (amended). Definitions ......................... 246§ 13352 (amended). Suspension or revocation of driving

privilege................................. 246§ 13352.3 (amended). Juvenile offender ................... 256§ 13355 (amended). Suspension for violation of Section

22348(b) ................................ 257§ 23520 (amended). Alcohol or drug education program......... 258§ 23521 (amended). Deemed conviction of a violation of Section

23153 .................................. 259§ 40502 (amended). Place specified in notice to appear ......... 259

WELFARE AND INSTITUTIONS CODE ........................ 261

§ 247 (repealed). Juvenile court referees ................... 261§ 258 (amended). Sanctions for violation ................... 262§ 654.1 (amended). Program of supervision ................. 265

___________________



CODE OF CIVIL PROCEDURE

Code Civ. Proc. § 73c (amended). Place of hearings relating to sale,exchange, or disposition of property of savings and loanassociation

SEC. ___. Section 73c of the Code of Civil Procedure isamended to read:

73c. Notwithstanding anything to the contrary contained inSections 73 and 142 of this code, or contained in any otherlaw of this State, the judge or judges of the superior court ofthe county in which is located the principal office in this Stateof any building savings and loan association of whosebusiness, property and assets possession shall have been takenby the Building and Loan Commissioner of FinancialInstitutions, may, in his or their discretion, whenever suchjudge or judges deem it necessary or advisable, hold hearingsrelating to the sale, exchange or other disposition of anyparcel of real property or any item of personal property ofsuch association, regardless of the location of such property,at the county seat of any county in this State or at such placesin the county in which the principal office in this State of suchassociation is located at which sessions of such superior courtshall be are held as provided in this code.

Comment . Section 73c is amended to reflect enactment ofGovernment Code Section 69740(a) (number and location of trial courtsessions).

The section is also amended to delete language referring to “the judge”of the court. Every superior court has at least two judgeships as a resultof trial court unification. See Gov’t Code § 69580 et seq. (number ofjudges). Where a court has only one judge due to a vacancy or otherwise,a reference to the judges of the court means the sole judge of the court.See Gov’t Code § 13 (plural includes singular).

The section is also amended to delete the references to former Sections73 and 142.


The section is also amended to replace the reference to the former“Building and Loan Commissioner” with a reference to the“Commissioner of Financial Institutions.” See 1955 Cal. Stat. ch. 40, § 1;Fin. Code § 210.5(c).

The section is also amended to replace the reference to “building andloan association” with a reference to “savings and loan association.” See1955 Cal. Stat. ch. 40, § 1.

Code Civ. Proc. § 73d (amended). Expenses of court officials inattending hearings relating to sale, exchange, or disposition ofproperty of savings and loan association

SEC. ___. Section 73d of the Code of Civil Procedure isamended to read:

73d. Whenever, under the provisions of Section 73c of thiscode, it becomes necessary for a judge, clerk, deputy clerk,court reporter or bailiff of or sitting in the superior court ofthe county in this State in which is located the principal officeof any building savings and loan association whose business,property and assets are in the possession of the Building andLoan Commissioner of Financial Institutions, to travel toanother county, there temporarily to attend hearings relatingto the sale, exchange or other disposition of real or personalproperty of such association, each such judge, clerk, deputyclerk, court reporter or bailiff shall be allowed his t h enecessary expenses in going to, returning from and attendingupon the business of such court. Such expenses shall uponorder of such court, be a charge against the funds of suchassociation and paid out of such funds by the Building andLoan Commissioner of Financial Institutions.

Comment. Section 73d is amended to replace references to the former“Building and Loan Commissioner” with references to the“Commissioner of Financial Institutions.” See 1955 Cal. Stat. ch. 40, § 1;Fin. Code § 210.5(c).

The section is also amended to replace the reference to “building andloan association” with a reference to “savings and loan association.” See1955 Cal. Stat. ch. 40, § 1.


Code Civ. Proc. § 90 (amended). Limitation of general law byeconomic litigation procedures

SEC. ___. Section 90 of the Code of Civil Procedure isamended to read:

90. Except where changed by the provisions of this Articleand Part 3.5 (commencing with Section 1823) article, allprovisions of law applicable to civil actions generally apply toactions subject to this article.

Comment. Section 90 is amended to reflect the repeal of former Part3.5 (commencing with Section 1823) of the Code of Civil Procedure,relating to pilot projects. See 1994 Cal. Stat. ch. 146, § 26; 1996 Cal.Stat. ch. 124, § 15.

Code Civ. Proc. § 116.250 (amended). Small claims court sessions

SEC. ___. Section 116.250 of the Code of Civil Procedureis amended to read:

116.250. (a) Sessions of the small claims court may bescheduled at any time and on any day, including Saturdays,but excluding other judicial holidays. They may also bescheduled at any public building within the county, includingplaces outside the courthouse.

(b) Each small claims division of a superior court withseven or more judicial officers shall conduct at least one nightsession or Saturday session each month for the purpose ofhearing small claims cases other than small claims appeals.The term “session” includes, but is not limited to, aproceeding conducted by a member of the State Bar acting asa mediator or referee.

Comment. Subdivision (a) of Section 116.250 is amended to reflectenactment of Government Code Section 69740(a) (number and locationof trial court sessions).

Code Civ. Proc. § 116.310 (amended). Pleadings and pretrialdiscovery in small claims case

SEC. ___. Section 116.310 of the Code of Civil Procedureis amended to read:


116.310. (a) No formal pleading other than the claimdescribed in Section 116.320 or 116.380 116.360, isnecessary to initiate a small claims action.

(b) The pretrial discovery procedures described insubdivision (a) of Section 2019 are not permitted in smallclaims actions.

Comment. Subdivision (a) of Section 116.310 is amended to correctthe cross-reference. See 1991 Cal. Stat. ch. 915, § 11.

Code Civ. Proc. § 196 (amended). Inquiry into qualifications


196. (a) The jury commissioner or the court shall inquire asto the qualifications of persons on the master list or source listwho are or may be summoned for jury service. Thecommissioner or the court may require any person to answer,under oath, orally or in written form, all questions as may beaddressed to that person, regarding the person’s qualificationsand ability to serve as a prospective trial juror. Thecommissioner and his or her assistants, shall have power toadminister oaths and shall be allowed actual travelingexpenses incurred in the performance of their duties. Suchtraveling expenses shall be audited, allowed, and paid out ofthe general fund of the county.

(b) Response to the jury commissioner or the courtconcerning an inquiry or summons may be made by anyperson having knowledge that the prospective juror is unableto respond to such inquiry or summons.

(c) Any person who fails to respond to jury commissioneror court inquiry as instructed, may be summoned to appearbefore the jury commissioner or the court to answer suchinquiry, or may be deemed to be qualified for jury service inthe absence of a response to the inquiry. Any information thusacquired by the court or jury commissioner shall be noted injury commissioner or court records.


Comment. Subdivision (a) of Section 196 is amended to reflectenactment of the Trial Court Funding Act. See Gov’t Code §§ 77003(“court operations” defined), 77200 (state funding of trial courtoperations). Cf. Cal. R. Ct. 810(d), Function 2 (jury services).Subdivision (a) is also amended to reflect enactment of GovernmentCode Section 69505 (business-related travel expenses of trial courtjudges and employees).

Code Civ. Proc. § 208 (amended). Summoning prospective jurors


208. The jury commissioner shall estimate the number ofprospective jurors that may be required to serve the needs ofthe trial courts court, and shall summon such prospectivejurors for service. Prospective jurors shall be summoned bymailing a summons by first-class mail or by personal serviceor, in urgency situations, as elsewhere provided by law. Thesummons, when served by mail, shall be mailed at least 10days prior to the date of required appearance. Once aprospective juror has been summoned, the date, time, or placeof appearance may be modified or further specified by thejury commissioner, by means of written, telegraphic,telephonic, or direct oral communication with the prospectivejuror.

Comment. Section 208 is amended to reflect unification of themunicipal and superior courts pursuant to former Section 5(e) of ArticleVI of the California Constitution.

Code Civ. Proc. § 431.30 (amended). Form and content of answer

SEC. ___. Section 431.30 of the Code of Civil Procedure isamended to read:

431.30. (a) As used in this section:(1) “Complaint” includes a cross-complaint.(2) “Defendant” includes a person filing an answer to a

cross-complaint.(b) The answer to a complaint shall contain:


(1) The general or specific denial of the material allegationsof the complaint controverted by the defendant.

(2) A statement of any new matter constituting a defense.(c) Affirmative relief may not be claimed in the answer.(d) If the complaint is subject to Article 2 (commencing

with Section 90) of Chapter 5 Chapter 5.1 of Title 1 of Part 1or is not verified, a general denial is sufficient but only puts inissue the material allegations of the complaint. If thecomplaint is verified, unless the complaint is subject toArticle 2 (commencing with Section 90) of Chapter 5 Chapter5.1 of Title 1 of Part 1, the denial of the allegations shall bemade positively or according to the information and belief ofthe defendant. However, if the cause of action is a claimassigned to a third party for collection and the complaint isverified, the denial of the allegations shall be made positivelyor according to the information and belief of the defendant,even if the complaint is subject to Article 2 (commencingwith Section 90) of Chapter 5 Chapter 5.1 of Title 1 of Part 1.

(e) If the defendant has no information or belief upon thesubject sufficient to enable him or her to answer an allegationof the complaint, he or she may so state in his or her answerand place his or her denial on that ground.

(f) The denials of the allegations controverted may be statedby reference to specific paragraphs or parts of the complaint;or by express admission of certain allegations of thecomplaint with a general denial of all of the allegations not soadmitted; or by denial of certain allegations upon informationand belief, or for lack of sufficient information or belief, witha general denial of all allegations not so denied or expresslyadmitted.

(g) The defenses shall be separately stated, and the severaldefenses shall refer to the causes of action which they areintended to answer, in a manner by which they may beintelligibly distinguished.


Comment. Subdivision (d) of Section 431.30 is amended to correct thereference to former Chapter 5.

Code Civ. Proc. § 575.1 (amended). Local court rules

SEC. ___. Section 575.1 of the Code of Civil Procedure isamended to read:

575.1. (a) The presiding judge of each superior andmunicipal court may prepare, with the assistance ofappropriate committees of the court, proposed local rulesdesigned to expedite and facilitate the business of the court.The rules need not be limited to those actions on the civilactive list, but may provide for the supervision and judicialmanagement of actions from the date they are filed. Rulesprepared pursuant to this section shall be submitted forconsideration to the judges of the court and, upon approval bya majority of the judges, the judges shall have the proposedrules published and submitted to the local bar and others, asspecified by the Judicial Council, for consideration andrecommendations.

(b) After a majority of the judges have officially adoptedthe rules, 61 copies or a greater number as specified byJudicial Council rule, they shall be filed with the JudicialCouncil as required by Section 68071 of the GovernmentCode and as specified in rules adopted by the JudicialCouncil. The Judicial Council shall deposit a copy of eachrule and amendment with each county law library or countyclerk where it shall be prescribe rules to ensure that acomplete current set of local rules and amendments, for eachcounty in the state, is made available for public examinationin each county. The local rules shall also be published forgeneral distribution in accordance with rules adopted by theJudicial Council. Each court shall make its local rulesavailable for inspection and copying in every location of thecourt that generally accepts filing of papers. The court mayimpose a reasonable charge for copying the rules and may


impose a reasonable page limit on copying. The rules shall beaccompanied by a notice indicating where a full set of therules may be purchased.

(c) If a judge of a court adopts a rule that applies solely tocases in that judge’s courtroom, or a particular branch ordistrict of a court adopts a rule that applies solely to cases inthat particular branch or district of a court, the court shallpublish these rules as part of the general publication of rulesrequired by the California Rules of Court. The court shallorganize the rules so that rules on a common subject, whetherindividual, branch, district, or courtwide appear sequentially.Individual judges’ rules and branch and district rules are localrules of court for purposes of this section and for purposes ofthe adoption, publication, comment, and filing requirementsset forth in the Judicial Council rules applicable to local courtrules.

Comment. Subdivision (a) of Section 575.1 is amended to reflectunification of the municipal and superior courts pursuant to formerSection 5(e) of Article VI of the California Constitution.

Subdivision (b) is amended to be consistent with the approach used inCalifornia Rule of Court 981, as amended effective January 1, 2003,regarding preparation of and public access to local rules. Rules of Courtadopted by the Judicial Council pursuant to this section cannot beinconsistent with statute. See Cal. Const. art. VI, § 6.

ELECTIONS CODE

Elec. Code § 16603 (amended). Judgment

SEC. ___. Section 16603 of the Elections Code is amendedto read:

16603. The court shall continue in special session to hearand determine all issues arising in contested elections. Afterhearing the proofs and allegations of the parties and within 10days after the submission thereof, the court shall file itsfindings of fact and conclusions of law, and immediatelythereafter shall pronounce judgment in the premises, either


confirming or annulling and setting aside the election. Thejudgment shall be entered immediately thereafter.

Comment. Section 16603 is amended to reflect the repeal ofGovernment Code Section 69741 (regular and special sessions).

FAMILY CODE

Fam. Code § 1811 (amended). Assignment of judges

SEC. ___. Section 1811 of the Family Code is amended toread:

1811. In counties having more than one judge of thesuperior court, the The presiding judge of the superior courtshall annually, in the month of January, designate at least onejudge to hear all cases under this part. The judge or judges sodesignated shall hold as many sessions of the familyconciliation court in each week as are necessary for theprompt disposition of the business before the court.

Comment. Section 1811 is amended to reflect enactment ofGovernment Code Section 69740(a) (number and location of trial courtsessions).

The section is also amended to reflect the fact that every superior courthas at least two judgeships as a result of trial court unification. See Gov’tCode § 69580 et seq. (number of judges).

FINANCIAL CODE

Fin. Code § 17647 (amended). Place of hearings

SEC. ___. Section 17647 of the Financial Code is amendedto read:

17647. Regardless of any law of this State, the judge judgesof the superior court of the county in this State in which theprincipal office of the licensee is located, may whenever hedeems the judges deem it necessary or advisable, holdhearings relating to the sale, exchange, or other disposition ofany real property or any personal property of the licenseeregardless of the location of such property. The hearings shall


be held at the county seat of any county in this State or atsuch places in the home county of such superior court atwhich sessions are held as provided in the Code of CivilProcedure.

Comment. Section 17647 is amended to reflect enactment ofGovernment Code Section 69740(a) (number and location of trial courtsessions).

The section is also amended to delete language referring to “the judge”of the court. Every superior court has at least two judgeships as a resultof trial court unification. See Gov’t Code § 69580 et seq. (number ofjudges). Where a court has only one judge due to a vacancy or otherwise,a reference to the judges of the court means the sole judge of the court.See Gov’t Code § 13 (plural includes singular).

FISH AND GAME CODE

Fish & Game Code § 12157 (amended). Forfeiture for violations

SEC. ___. Section 12157 of the Fish and Game Code isamended to read:

12157. (a) Except as provided in subdivision (b), the judgebefore whom any person is tried for a violation of anyprovision of this code, or regulation adopted pursuant thereto,may, upon the conviction of the person tried, order theforfeiture of any device or apparatus that is designed to be, oris capable of being, used to take birds, mammals, fish,reptiles, or amphibia and that was used in committing theoffense charged.

(b) The judge shall, if the offense is punishable underSection 12008 of this code or under subdivision (c) of Section597 of the Penal Code, order the forfeiture of any device orapparatus that is used in committing the offense, including,but not limited to, any vehicle that is used or intended for usein delivering, importing, or exporting any unlawfully taken,imported, or purchased species.

(c)(1) The judge may, for conviction of a violation of eitherof the following offenses, order forfeiture of any device or


apparatus that is used in committing the offense, including,but not limited to, any vehicle used or intended for use incommitting the offense:

(A) Section 2000 relating to deer, elk, antelope, feral pigs,European wild boars, black bears, and brown or cinnamonbears.

(B) Any offense that involves the sale, purchase, orpossession of abalone for commercial purposes.

(2) In considering an order of forfeiture under thissubdivision, the court shall take into consideration the nature,circumstances, extent, and gravity of the prohibited actcommitted, the degree of culpability of the violator, theproperty proposed for forfeiture, and other criminal or civilpenalties imposed on the violator under other provisions oflaw for that offense. The court shall impose lesser forfeiturepenalties under this subdivision for those acts that have littlesignificant effect upon natural resources or the property ofanother and greater forfeiture penalties for those acts that maycause serious injury to natural resources or the property ofanother, as determined by the court. In determining whetheror not to order forfeiture of a vehicle, the court shall, inaddition to any other relevant factor, consider whether thedefendant is the owner of the vehicle and whether the ownerof the vehicle had knowledge of the violation.

(3) It is the intent of the Legislature that forfeiture not beordered pursuant to this subdivision for minor or inadvertentviolations of Section 2000, as determined by the court.

(d) Any device or apparatus ordered forfeited shall be sold,used, or destroyed by the department.

(e)(1) The proceeds from all sales under this section, afterpayment of any valid liens on the forfeited property, shall bepaid into the Fish and Game Preservation Fund.

(2) A lien in which the lienholder is a conspirator is not avalid lien for purposes of this subdivision.


(f) The provisions in this section authorizing or requiring ajudge to order the forfeiture of a device or apparatus alsoapply to the judge, referee, or traffic juvenile hearing officerin a juvenile court action brought under Section 258 of theWelfare and Institutions Code.

(g) For purposes of this section, a plea of nolo contendere orno contest, or forfeiture of bail, constitutes a conviction.

(h) Neither the disposition of the criminal action other thanby conviction nor the discretionary refusal of the judge toorder forfeiture upon conviction impairs the right of thedepartment to commence proceedings to order the forfeitureof fish nets or traps pursuant to Section 8630.

Comment. Subdivision (f) of Section 12157 is amended to reflect theredesignation of traffic hearing officers as juvenile hearing officers. See1997 Cal. Stat. ch. 679.

FOOD AND AGRICULTURAL CODE

Food & Agric. Code § 21856 (amended). Forfeiture of device orapparatus

SEC. ___. Section 21856 of the Food and Agricultural Codeis amended to read:

21856. (a) The judge before whom any person is tried forthe wrongful taking, possessing, killing, or slaughter of cattlewithout the consent of the owner or the person lawfully inpossession of those cattle may, upon the conviction of theperson tried, order the forfeiture of any device or apparatusthat is designed to be, or is capable of being, used to committhe offense charged, and which was used in committing theoffense charged. “Device or apparatus” includes, but is notlimited to, any vehicle that is used or intended for use intaking, possessing, harboring, or transporting the cattle.

(b) Any device or apparatus ordered forfeited shall be sold,used, or destroyed by the department.


(c) The provisions in this section authorizing a judge toorder the forfeiture of a device or apparatus are alsoapplicable to the judge, referee, or traffic juvenile hearingofficer in a juvenile court action brought under Section 258 ofthe Welfare and Institutions Code.

(d) For purposes of this section, a plea of nolo contendere orno contest, or forfeiture of bail, constitutes a conviction.

(e) Neither the disposition of the criminal action other thanby conviction nor the discretionary refusal of the judge toorder forfeiture upon conviction impairs the right of thedepartment to commence proceedings to order the forfeitureof property pursuant to any other provision of law.

Comment. Subdivision (c) of Section 21856 is amended to reflect theredesignation of traffic hearing officers as juvenile hearing officers. See1997 Cal. Stat. ch. 679.

GOVERNMENT CODE

Gov’t Code § 20437 (amended). “County peace officer” as includingconstable, marshal, and deputy

SEC. ___. Section 20437 of the Government Code isamended to read:

20437. (a) “County peace officer” shall also include theconstable and each regularly employed deputy constable andthe marshal and each regularly employed deputy marshal ofany judicial district who serves the superior court. He or sheshall receive credit for service as a peace officer for any timehe or she served as constable or deputy constable of atownship or justice court or marshal or deputy marshal of amunicipal court in the same county.

(b) The provisions of this section do not apply to theemployees of a contracting agency nor to the agency, unlessand until the contracting agency elects to be subject to thissection by amendment to its contract with the board, made as


provided in Section 20474, or by express provision in itscontract with the board.

(c) “County peace officer” does not include any officer oremployee who is a local sheriff, as defined in Section20432.5.

Comment. Subdivision (a) of Section 20437 is amended to reflectunification of the municipal and superior courts pursuant to formerSection 5(e) of Article VI of the California Constitution. Subdivision (a)is also amended to reflect elimination of the justice court pursuant toSection 1 and former Section 5(b) of Article VI of the CaliforniaConstitution.

Gov’t Code § 24151 (amended). Amount of supervisor’s bond


24151. Prior to the primary election immediately precedingthe election of county officers the judge or judges of thesuperior court shall prescribe the amount in which eachmember of the board of supervisors shall execute an officialbond, before entering upon the discharge of the duties of histhe office.

Comment. Section 24151 is amended to delete language referring to“the judge” of the court. Every superior court has at least two judgeshipsas a result of trial court unification. See Section 69580 et seq. (number ofjudges). Where a court has only one judge due to a vacancy or otherwise,a reference to the judges of the court means the sole judge of the court.See Section 13 (plural includes singular).

Gov’t Code § 24250.1 (amended). Offices in cities where sessions ofsuperior court held

SEC. ___. Section 24250.1 of the Government Code isamended to read:

24250.1. Sheriffs and clerks shall also have offices in eachcity in which they perform court-related services and aregular session facility of the superior court is held pursuantto law. This section does not authorize the establishment of


offices in cities in which extra sessions of the superior courtare held located.

Comment. Section 24250.1 is amended to reflect enactment of Section69740(a) (number and location of trial court sessions) and repeal ofSection 69741 (regular and special sessions).

The section is also amended to reflect the fact that court-relatedservices may not be performed by the sheriff in all counties.

The section is also amended to reflect elimination of the county clerk’srole as ex officio clerk of the superior court. See former Section 26800(county clerk acting as clerk of superior court). The powers, duties, andresponsibilities formerly exercised by the county clerk as ex officio clerkof the court are delegated to the court administrative or executive officer,and the county clerk is relieved of those powers, duties, andresponsibilities. See Sections 69840 (powers, duties, and responsibilitiesof clerk of court and deputy clerk of court), 71620 (trial court personnel).

Gov’t Code § 40230 (amended). Purpose of census


40230. For the purpose of determining where sessions ofthe superior courts shall be held and county offices shall beestablished, a city legislative body may establish thepopulation of the city pursuant to this article.

Comment. Section 40230 is amended to reflect enactment of Section69740(a) (number and location of trial court sessions).

Gov’t Code § 68079 (amended). Provision of superior court seal


68079. A court for which the necessary seal has not beenprovided, or the judge or judges of that court, shall provide it.The expense shall be an item of court operations. Until theseal is provided the clerk or judge of each court may use hisor her private seal whenever a seal is required.

Comment. Section 68079 is amended to reflect the fact that everysuperior court has at least two judgeships as a result of trial courtunification. See Section 69580 et seq. (number of judges). Where a courthas only one judge due to a vacancy or otherwise, a reference to the


judges of the court means the sole judge of the court. See Section 13(plural includes singular).

The section is also amended to delete an obsolete provision regardingthe use of private seals.

Gov’t Code § 68100 (amended). Appearances at appointed locationof superior court


68100. When the court is held at a place appointed,pursuant to Sections 68099 Section 68115, 69742, and 69744every person held to appear at the court shall appear at theplace so appointed.

Comment. Section 68100 is amended to correct the reference toformer Section 68099 and to reflect the repeal of Sections 69742 and69744, relating to court sessions away from the courthouse in specifiedcircumstances.

Gov’t Code § 68108 (amended). Unpaid furlough days


68108. (a) To the extent that a Memorandum ofUnderstanding for trial court employees designates certaindays as unpaid furlough days for employees assigned toregular positions in the superior court, the court shall not be insession on those days except as ordered by the presidingjudge upon a finding by the presiding judge of a judicialemergency as defined in Chapter 1.1 (commencing withSection 68115). On these furlough days, although if the courtclerk’s office shall i s not be open to the public, each courtshall permit documents to be filed at a drop box pursuant tosubdivision (b), and . If the court is not in session on afurlough day, an appropriate judicial officer shall be availableto conduct arraignments and examinations as requiredpursuant to Section 825 of the Penal Code, and to sign anynecessary documents on an emergency basis.


(b) A drop box shall provide for an automated, official timeand date stamping mechanism or other means of determiningthe actual date on which a document was deposited in thedrop box.

Comment. Subdivision (a) of Section 68108 is amended to reflect thefact that furlough days might not affect all court employees and thereforemight not require the cessation of court sessions.

Subdivision (a) is also amended to make clear that the reference to the“clerk’s office” means the court clerk’s office, not the county clerk’soffice.

Gov’t Code § 68112 (repealed). Trial court coordination plans

SEC. ___. Section 68112 of the Government Code isrepealed.

68112. (a) On or before March 1, 1992, each superior andmunicipal court in each county, in consultation with the localbar, shall prepare and submit to the Judicial Council forreview and approval a trial court coordination plan designedto achieve maximum utilization of judicial and other courtresources and statewide cost reductions in court operations ofat least 3 percent in the 1992-93 fiscal year, a further 2percent in the 1993-94 fiscal year, and a further 2 percent inthe 1994-95 fiscal year, as applicable. The cost reductionshall be based on the prior year actual expenditures, plus anyamount reduced from the budget for court operations by acounty as a result of any reduction in state funding madepursuant to Section 13308, increased by the percentagechange in population for the prior calendar year and the Tradeand Commerce Agency implicit price deflator for state andlocal government for the prior calendar year. Thecoordination plan for each court shall be reviewed andapproved by the Judicial Council on or before July 1, 1992.Thereafter, commencing in 1995 and every two yearsthereafter, courts in each county shall prepare, in consultationwith the local bar, and submit a trial court coordination planto the Judicial Council on or before March 1, for review and


approval by July 1. The plans shall comply with rulespromulgated by the Judicial Council and shall be designed toachieve maximum utilization of judicial and other resourcesto accomplish increased efficiency in court operations andincreased service to the public. Any plan disapproved by theJudicial Council shall be revised and resubmitted within 60days of notification of disapproval. The Judicial Council mayby rule exempt courts from the requirement of filing a newcoordination plan for any year if all courts in the county have(1) totally consolidated administrative functions under asingle administrative entity, and (2) adopted and implementeda coordination plan in which all courts share each other’swork so that cases in all of the county’s courts aresubstantially assigned without regard to whether a judge is onthe superior court or the municipal court, and which providesfor procedures that implement that sharing of work.

(b) The coordination plan shall take into consideration theelements specified in standards and rules adopted by theJudicial Council and applicable case processing timestandards adopted by the Judicial Council. The standardsadopted by the Judicial Council shall include, but not belimited to, the following:

(1) The use of blanket cross-assignments allowing judges tohear civil, criminal, or other types of cases within thejurisdiction of another court.

(2) The coordinated or joint use of subordinate judicialofficers to hear or try matters.

(3) The coordinated, joint use, sharing or merger of courtsupport staff among trial courts within a county or acrosscounties. In a county with a population of less than 100,000the coordination plan need not involve merger of superior andjustice court staffs if the court can reasonably demonstratethat the maintenance of separate administrative staffs wouldbe more cost-effective and provide better service.


(4) The assignment of civil, criminal, or other types of casesfor hearing or trial, regardless of jurisdictional boundaries, toany available judicial officer.

(5) The assignment of any type of case to a judge for allpurposes commencing with the filing of the case andregardless of jurisdictional boundaries.

(6) The establishment of separate calendars or divisions tohear a particular type of case.

(7) In rural counties, the use of all court facilities forhearings and trials of all types of cases and to accept for filingdocuments in any case before any court in the countyparticipating in the coordination plan.

(8) The coordinated or joint use of alternative disputeresolution programs such as arbitration.

(9) The unification of the trial courts within a county to themaximum extent permitted by the California Constitution.

(10) The joint development of automated accounting andcase-processing systems, including joint use of moneysavailable under Section 68090.8.

(c) In preparing coordination plans a court or courts in acounty may petition the Judicial Council to permit division ofthe court or courts into smaller administrative units where acourtwide plan would impose an undue burden because of thenumber of judges or the physical location of the divisions ofthe court or courts.

(d) In preparing coordination plans, the courts are stronglyencouraged to develop a plan that includes all superior andmunicipal courts in the county.

Comment. Section 68112 is repealed to reflect:(1) Unification of the municipal and superior courts pursuant to former

Section 5(e) of Article VI of the California Constitution. See Sections70210 (adoption of rules), 70211 (judges), 70212 (officers andemployees), 70214 (commissioners and referees), 70215 (constructionwith other laws).

(2) Enactment of the Trial Court Employment Protection andGovernance Act. See Sections 71620(a) (job classifications and


appointments), 71622 (subordinate judicial officers), 71640-71645(employment selection and advancement).

Gov’t Code § 68112.5 (repealed). Cross-assignment of subordinatejudicial officers

SEC. ___. Section 68112.5 of the Government Code isrepealed.

68112.5. Notwithstanding any other provision of law, inthose counties with approved coordination plans pursuant toSection 68112 that so provide, the subordinate judicialofficers of a trial court, by agreement between trial courtswithin the same county, may be cross-assigned to any othertrial court within the same county and, when so assigned,shall exercise all of the powers and perform all of the dutiesauthorized by law to be performed by any subordinate judicialofficer of that court.

Comment. Section 68112.5 is repealed to reflect:(1) Unification of the municipal and superior courts pursuant to former

Section 5(e) of Article VI of the California Constitution.(2) Enactment of the Trial Court Employment Protection and

Governance Act. See Section 71622 (subordinate judicial officers).

Gov’t Code § 68114 (repealed). Single presiding judge


68114. Notwithstanding any other provision of law, thesuperior and municipal court judges participating in acoordination plan approved pursuant to Section 68112 mayselect, if the coordination plan so provides, any one of theirnumber to serve as the single presiding judge of all theparticipating courts by a majority vote of the judges from allcourts sitting as a committee of the whole or in some othermanner as set forth in the coordination plan.

The single presiding judge shall have all the powers andduties of the former presiding judges of each of theparticipating superior and municipal courts. The single


presiding judge may be empowered by the coordination planto sit as the chair of any executive committee formed by theparticipating courts as part of their coordination plan.

Comment. Section 68114 is repealed to reflect unification of themunicipal and superior courts pursuant to former Section 5(e) of ArticleVI of the California Constitution. See Section 70215 (construction withother laws).

Gov’t Code § 68114.5 (repealed). Single executive committee


68114.5. Notwithstanding any other provision of law, thesuperior and municipal court judges participating in acoordination plan approved pursuant to Section 68112 mayestablish a single executive committee of judicial officers tooversee, if the coordination plan so provides, the activities ofthe participating courts. The committee shall includerepresentatives of all participating courts in a mannerspecified in the coordination plan. The committee shall havesuch powers and duties as are delegated to it by eachparticipating court in the coordination plan, which mayinclude oversight of the administration of the courts andjudicial activities.

Comment. Section 68114.5 is repealed to reflect unification of themunicipal and superior courts pursuant to former Section 5(e) of ArticleVI of the California Constitution.

Gov’t Code § 68114.6 (repealed). Powers and duties of courtexecutive officer


68114.6. Notwithstanding any other provision of law, thesuperior and municipal court judges participating in acoordination plan approved pursuant to Section 68112 mayappoint, if the coordination plan so provides, an executiveofficer to serve as the chief administrative officer of the


participating courts. The executive officer shall hold office atthe pleasure of a majority vote of the judges from all of theparticipating courts sitting as a committee of the whole or asset forth in the coordination plan. The courts shall fix thequalifications of the executive officer. The salary of theexecutive officer shall be fixed by the participating courts andshall be paid by the county in which the executive officerserves. Each such position shall be exempt from civil servicelaws.

The participating courts may delegate to the executiveofficer any administrative powers and duties required to beexercised by the participating courts. The executive officershall exercise such administrative powers and perform suchother duties as may be required of him or her by theparticipating courts. Any executive officer appointed underthis section has the authority of a clerk of any participatingsuperior or municipal court. The executive officer shallperform, or supervise the performance of, the duties of a jurycommissioner in the county of any participating superiorcourt. The executive officer shall supervise the secretaries ofthe judges of the participating courts.

Notwithstanding any other provision of law, anyparticipating superior court may, by local rule, specify whichof the powers, duties, and responsibilities required orpermitted to be exercised or performed by the county clerk inconnection with judicial actions, proceedings, and recordsshall be exercised or performed by the executive officerappointed under this section. The county clerk shall berelieved of any obligation imposed on him or her by law withrespect to these specified powers, duties, and responsibilities,to the extent the local rule imposes on the executive officerthe same powers, duties, and responsibilities.

Any participating superior court having specific statutoryauthorization to appoint an executive or administrative officer


may elect to proceed under its specific authorization or underthis section, but not under both.

Comment. Section 68114.6 is repealed to reflect:(1) Unification of the municipal and superior courts pursuant to former

Section 5(e) of Article VI of the California Constitution. See Section70215 (construction with other laws).

(2) Enactment of the Trial Court Employment Protection andGovernance Act. See Section 71620 (trial court personnel). See alsoCode Civ. Proc. § 195 (jury commissioner).

(3) Enactment of the Trial Court Funding Act. See Sections 77003(“court operations” defined), 77200 (state funding of trial courtoperations).

Gov’t Code § 68114.9 (repealed). Cross-deputization


68114.9. To facilitate implementation of a coordination planapproved pursuant to Section 68112:

(a) The clerk of the municipal court may authorizepersonnel of the municipal court to be cross-deputized by theclerk of the superior court to perform comparable courtduties. Personnel deputized pursuant to this section shallserve without additional compensation.

(b) The clerk of the superior court may authorize personnelof the clerk of the superior court to be cross-deputized by theclerk of the municipal court to perform comparable courtduties. Personnel deputized pursuant to this section shallserve without additional compensation.

Comment. Section 68114.9 is repealed to reflect unification of themunicipal and superior courts pursuant to former Section 5(e) of ArticleVI of the California Constitution.

Gov’t Code § 68620 (amended). Delay reduction program


68620. (a) Each superior court shall establish a delayreduction program for limited civil cases in consultation with


the local bar that is consistent with the provisions of thisarticle. In its discretion, the Judicial Council may assist in thedevelopment of, or may develop and adopt, any or allprocedures, standards, or policies for a delay reductionprogram for limited civil cases in superior courts on astatewide basis which are consistent with the provisions of theTrial Court Delay Reduction Act.

(b) Actions and proceedings subject to the provisions ofChapter 5.5 (commencing with Section 116.110) of Title 1 ofPart 1 of the Code of Civil Procedure or provisions of Chapter4 (commencing with Section 1159) of Title 3 of Part 3 of theCode of Civil Procedure shall not be assigned to or governedby the provisions of any delay reduction program establishedpursuant to the section.

(c) It is the intent of the Legislature that the civil discoveryin actions and proceedings subject to a program establishedpursuant to Article 2 (commencing with Section 90) ofChapter 5 Chapter 5.1 of Title 1 of Part 1 of the Code of CivilProcedure shall be governed by the times and proceduresspecified in that article. Civil discovery in these actions andproceedings shall not be affected by the provisions of anydelay reduction program adopted pursuant to this section.

Comment. Subdivision (c) of Section 68620 is amended to correct thereference to former Chapter 5.

Gov’t Code § 69595.5 (repealed). Sessions in San Diego County


69595.5. Notwithstanding the provisions of Article 5(commencing with Section 69740) of Chapter 5 of Title 8, inthe County of San Diego, one or more judges of the superiorcourt shall hold concurrent daily sessions in the City of Vista,two or more judges of the superior court shall hold concurrentdaily sessions in the City of El Cajon, and one judge of the


superior court shall hold concurrent daily sessions within theformer South Bay Municipal Court District.

Comment. Section 69595.5 is repealed to reflect enactment of Section69740(a) (number and location of trial court sessions).

Gov’t Code §§ 69640-69650 (repealed). Superior court districts

SEC. ___. Article 4 (commencing with Section 69640) ofChapter 5 of Title 8 of the Government Code is repealed.

Comment. Sections 69640-69650 are repealed to reflect:(1) Enactment of Section 69740(a) (number and location of trial court

sessions). See also Section 69508(a) (presiding judge shall distributebusiness of court); Cal. R. Ct. 6.603 (duties of presiding judge). It shouldbe noted that Section 69740 continues with revisions former Section69645. See Comment to Section 69740.

(2) Enactment of the Trial Court Facilities Act of 2002. See Section70301 et seq. The repeal of Section 69647 is not intended to affect acounty’s responsibility under Section 70311 (formerly Section 68073)(responsibility for court operations and facilities) and the Trial CourtFacilities Act with regard to existing superior court facilities.

Gov’t Code § 69640 (added). Superior court districts in Los AngelesCounty

SEC. ___. Article 4 (commencing with Section 69640) isadded to Chapter 5 of Title 8 of the Government Code, toread:

Article 4. Superior Court Districts in LosAngeles County

69640. (a) The superior court in Los Angeles County mayby local rule establish superior court districts within whichone or more sessions of the court shall be held.

(b) The superior court districts established by countyordinance and in effect as of January 1, 2003, shall continueto be recognized as the superior court districts until the courtenacts a local rule as provided in subdivision (a).

Comment. Section 69640 supersedes former Section 69641. It reflectsenactment of the Trial Court Funding Act. See Section 77001 (local trial


court management). See also Section 69740(a) (number and location oftrial court sessions).

Gov’t Code § 69740 (repealed). Population of city


69740. The determination of whether a city has thepopulation prescribed in this article shall be made on the basisof the last preceding census taken under the authority of theCongress or the Legislature.

Comment. Section 69740 is repealed to reflect enactment of newSection 69740(a) (number and location of trial court sessions).

Gov’t Code § 69740 (added). Number and location of trial courtsessions

SEC. ___. Section 69740 is added to the Government Code,to read:

69740. (a) Notwithstanding any other provision of law, eachtrial court shall determine the number and location of sessionsof the court necessary for the prompt disposition of thebusiness before the court. In making this determination, thecourt shall consider, among other factors, the impact of thisprovision on court employees pursuant to Section 71634, theavailability and adequacy of facilities for holding the courtsession at the specific location, the efficiency and cost ofholding the session at the specific location, any applicablesecurity issues, and the convenience to the parties and thepublic served by the court. Nothing in this section precludes asession from being held in a building other than a courthouse.

(b) In appropriate circumstances, upon agreement of thepresiding judges of the courts, and in the discretion of thecourt, the location of a session may be outside the county,except that the consent of the parties shall be necessary to theholding of a criminal jury trial outside the county. The venueof a case whose session is held outside the county pursuant to


this section shall be deemed to be the home county of thecourt in which the matter was filed. Nothing in this sectionshall provide a party with the right to seek a change of venueunless otherwise provided by statute. No party shall have anyright to request the court to exercise its discretion under thissection.

(c) The Judicial Council may adopt rules that address anappropriate mechanism for sharing of expenses and resourcesbetween the court holding the session and the court hostingthe session.

Comment. Section 69740 continues the substance of former Section69645 and adds language to subdivision (a) to make clear that a sessionmay be held outside of the courthouse in a private or public building. Seeformer Code Civ. Proc. § 116.250 (small claims court sessions) (1998Cal. Stat. ch. 931, § 40). The clause “necessary for the promptdisposition of the business before the court” is also added to subdivision(a). It is drawn from former Family Code Section 1811 (assignment ofjudges) (1992 Cal. Stat. ch. 162, § 10).

For provisions relating to restatements and continuations of existinglaw, see Section 2.

Gov’t Code § 69741 (repealed). Regular and special sessions


69741. Except as otherwise provided by Section 68115,each superior court shall hold its sessions:

(a) At the location or locations in each superior courtdistrict specified by ordinance adopted pursuant to Article 4(commencing at Section 69640) of this chapter.

(b) In every county in which such an ordinance is not ineffect, at the county seat and at such other locations, if any, asprovided in this article.

The superior court shall hold regular sessions commencingon the first Mondays of January, April, July, and October, andspecial sessions at such other times as may be prescribed bythe judges of the court, except that in the City and County of


San Francisco the presiding judge shall prescribe the times ofholding such special sessions.

Comment. Section 69741 is repealed to reflect:(1) Enactment of Section 69740(a) (number and location of trial court

sessions).(2) Repeal of Article 4 (commencing with former Section 69640).(3) The fact that the references to regular and special sessions are

obsolete. Code of Civil Procedure Sections 74, 133, and 134 authorizesuperior courts to hold sessions at all times, unless specifically prohibitedby law.

Gov’t Code § 69742 (repealed). Sessions in cities of 35,000 and eightmiles distant


69742. A session of the superior court shall be held at eachcity with a population of not less than 35,000 and in whichthe city hall is not less than eight miles from the site of thecounty courthouse. If such a city has a population of morethan 125,000, at least three regular sessions of the superiorcourt shall be held concurrently.

Comment. Section 69742 is repealed to reflect:(1) Enactment of Section 69740(a) (number and location of trial court

sessions).(2) Repeal of Section 69741 (regular and special sessions).

Gov’t Code § 69743 (repealed). Additional sessions


69743. By an order filed with the clerk of the court andpublished as a majority of the judges of the superior court ofthe county prescribe, such a majority, when it deems itnecessary or convenient, may provide for and direct theholding of additional sessions in each of the cities describedin Section 69742.

Comment. Section 69743 is repealed to reflect enactment of Section69740(a) (number and location of trial court sessions).


Gov’t Code § 69744 (repealed). Sessions at other locations


69744. When the judges of the superior court of a countydeem it necessary or advisable, by order filed with the clerkof the court and published as they prescribe, they may directthat the court be held or continued:

(a) At any place in the county, not less than 120 milesdistant from the county seat.

(b) At any other city in the county with a population of notless than 7,000, in which the city hall is not less than 55 milesfrom the site of the county courthouse.

(c) At any other city in the county with a population of notless than 2,200 in which the city hall is not less than 60 milesfrom the site of the county courthouse.


Gov’t Code § 69744.5 (repealed). Sessions in unincorporatedterritory


69744.5. When a majority of the judges of the superiorcourt deem it necessary or advisable, by order filed with theclerk of the court and published as the judges prescribe, thejudges may direct that the court be held at least once a weekat any designated place in the county, not less than 45 milesdistant from the county seat, measured by air line. The placedesignated shall be within a former judicial district composedwholly of unincorporated territory, with a population of morethan 40,000 as determined pursuant to Section 71043. Amajority of the judges may limit the type of judicialproceedings which may be heard by the court at such place toprobate matters and matters relating to domestic relations.


Comment. Section 69744.5 is repealed to reflect enactment of Section69740(a) (number and location of trial court sessions). See also Section69508(a) (presiding judge shall distribute business of court); Cal. R. Ct.6.603 (duties of presiding judge).

Gov’t Code § 69745 (repealed). Sessions in cities of 7,000 and 55miles distant


69745. A session of the superior court may be held for aperiod not exceeding two weeks in any one month at each citywith a population of not less than 7,000 in which the city hallis not less than 55 miles from the site of the countycourthouse.


Gov’t Code § 69745.5 (repealed). Sessions in unincorporated areaand 55 miles distant


69745.5. A session of the superior court may be held for aperiod not exceeding two weeks in any month at any locationwithin the county, not less than 55 miles from the site of thecounty courthouse, with the permission of the county board ofsupervisors and the approval of either the presiding judge orthe majority of the judges of such court, except that such two-week period may be extended as necessary to complete anytrial or hearing which is in progress and is not completedwithin the initial two-week period.





69746. At least one session of the superior court shall beheld in each city with a population of not less than 20,000 inwhich the city hall is not less than 30 miles from the site ofthe county courthouse.


Gov’t Code § 69746.5 (repealed). Sessions in judicial district in KernCounty


69746.5. In a county of the 14th class, at least one sessionof the superior court may be held at a location designated bythe board of supervisors which is not less than 40 miles, normore than 50 miles, from the site of the county courthouse.However, at such time on or after July 1, 1990, as the boardof supervisors finds that there are sufficient funds for thispurpose, the board of supervisors shall designate a locationtherefor which is within a judicial district, or former district ina county in which there is no municipal court, with apopulation of more than 40,000 as determined pursuant toSection 71043.


Gov’t Code § 69747 (repealed). Sessions in cities of 50,000 and sixmiles distant


69747. At least one session of the superior court shall beheld in each city with a population of not less than 50,000 inwhich the city hall is not less than six miles from the site ofthe county courthouse.





69748. At least one session of the superior court shall beheld in each city to which all of the following conditionsapply:

(a) The city hall is not less than 18 miles from the site of thecounty courthouse.

(b) The city has a population of not less than 10,000.(c) Within the 10-mile radius from the city hall there is a

population of not less than 50,000.(d) There are residing in the county at least 18 miles from

the county courthouse not less than 15,000 persons, some ofwhom would be required to travel 50 miles to attend court atsuch city and at least 10 miles farther in order to attend thesuperior court at the county courthouse, or any other placewhere sessions of the superior court have been established.

(e) Other than subdivision (c) of this section, the distancesprovided for in this section shall be measured by followingthe shortest road or roads connecting the points in question.


Gov’t Code § 69748.1 (repealed). Sessions in cities of 9,700 and 70miles distant


69748.1. At least one session of the superior court shall beheld in each city to which all of the following conditionsapply:

(a) The city hall is not less than 70 miles from the site of thecounty courthouse.

(b) The city has a population of not less than 9,700.


(c) Within the 30-mile radius from the city hall there is apopulation of not less than 56,000.

(d) There are residing in the county at least 40 miles fromthe county courthouse not less than 69,000 persons, some ofwhom would be required to travel 80 miles to attend court atsuch city and at least 70 miles farther in order to attend thesuperior court at the county courthouse, or any other placewhere sessions of the superior court have been established.

At least four sessions of the superior court shall be held ineach city to which all of the foregoing conditions apply, andwhich city in addition is located in a county in which there areat least 12 judges of the superior court.


Gov’t Code § 69749 (repealed). Fourteen mile limit


69749. Except in those cities in which sessions of thesuperior court are required by law to be held and in whichsuch sessions were being held on or before July 1, 1954, nosessions of the superior court shall be held in any citythereafter meeting the requirements of this article unless thecity hall of that city is 14 miles or more from the city hall ofthe nearest city other than the county seat in which one ormore sessions of the superior court are held.

If after October 1, 1949, such sessions are authorized bylaw to be held in such city for the first time, the adequacy ofthe proposed court’s quarters in which such sessions are to beheld shall be approved in advance by a majority of the judgesof the superior court.



Gov’t Code § 69749.2 (repealed). Sessions prior to ninety-first dayafter adjournment of 1959 legislative session


69749.2. Except in those cities in which sessions of thesuperior court are required by law to be held and in whichsessions were being held on the effective date of this section,no sessions of the superior court shall be held prior to theninety-first day after the adjournment of the 1959 Session ofthe Legislature in any city meeting the requirements of thisarticle unless the board of supervisors by resolution providesan earlier date upon which such sessions may be held.


Gov’t Code § 69749.3 (repealed). Sessions in Palm Springs


69749.3. Notwithstanding the provisions of this article,sessions of the superior court in Riverside County may beheld in Palm Springs at such times as may be prescribed bythe judges sitting pursuant to Section 69748.1.


Gov’t Code § 69749.4 (repealed). Sessions in Indian Wells Valleyarea of northeast Kern County


69749.4. Notwithstanding any other provision of thisarticle, sessions of the superior court shall be held in theIndian Wells Valley area of northeast Kern County at suchtimes as may be prescribed by the judges.



Gov’t Code § 69751.5 (repealed). Sessions in cities of 7,000 and 30miles distant


69751.5. The judge or a majority of the judges of thesuperior court in and for any county, with the approval of theboard of supervisors, may establish a session of the superiorcourt in any city with a population in excess of seventhousand (7,000) inhabitants and in which the city hall islocated more than thirty (30) miles from the countycourthouse if the judge or a majority of the judges determinesthat such session is necessary to serve the convenience of theresidents of the county and promote the ends of justice.


Gov’t Code § 69752 (repealed). Sessions in cities other than countyseat


69752. (a) Notwithstanding any other provision of thiscode, no superior court will hold sessions in any city otherthan the county seat except with the approval of the board ofsupervisors.

(b) The board of supervisors may terminate superior courtsessions being held in any city other than the county seat.

(c) The board of supervisors of counties seeking to establishor terminate branch court sessions shall request therecommendations and advice of the Judicial Council beforetaking action.

The board of supervisors, under this section, may notterminate sessions of the superior court in any city in whichsessions of the superior court were being held on or beforeJanuary 1, 1957, in a county now having 1 million populationor more which is contiguous to a county of 7 million


population or more and sessions of the superior court existingin any such county on or about January 1, 1970 are herebyreestablished if they have been terminated during 1970 andmay not be terminated by the board of supervisors.


Gov’t Code §§ 69790-69800 (repealed). Extra sessions


Comment. Sections 69790-69800 are repealed to reflect:(1) The fact that provisions regarding extra sessions are obsolete. Code

of Civil Procedure Sections 74, 133, and 134 authorize superior courts tohold sessions at all times, unless specifically prohibited by law. See alsoCal. Const. art. VI, § 6 (Chief Justice may assign judge to another court);Sections 68540.7 (compensation of assigned judge), 69508 (duties ofpresiding judge), 69741.5 (number of sessions equal to number of judgeselected, appointed, or assigned); Code Civ. Proc. § 166 (authority ofsuperior court judge); Cal. R. Ct. 6.603 (authority and duties of presidingjudge).

(2) Enactment of Section 69740(a) (number and location of trial courtsessions).

(3) The fact that every superior court has at least two judgeships as aresult of trial court unification. See Section 69580 et seq. (number ofjudges). Where a court has only one judge due to a vacancy or otherwise,a reference to the judges of the court means the sole judge of the court.See Section 13 (plural includes singular).

Gov’t Code § 69841 (amended). Court clerk’s attendance


69841. The clerk of the superior court shall attend eachsession of the superior court in his the county and upon thejudge or judges of the court in chambers when required.

Comment. Section 69841 is amended to delete language referring to“the judge” of the court. Every superior court has at least two judgeshipsas a result of trial court unification. See Section 69580 et seq. (number ofjudges). Where a court has only one judge due to a vacancy or otherwise,


a reference to the judges of the court means the sole judge of the court.See Section 13 (plural includes singular).

Gov’t Code § 69891 (repealed). Appointment and salary ofstenographer or secretary


69891. In each county with a population of 65,500 or overwhere there is no jury commissioner provided, and with notmore than three departments of the superior court in thecounty, to assist the court in the transaction of its judicialbusiness, the judges of the court may appoint one competentstenographer or secretary skilled in such work for each judgeof the superior court of the county, who shall render suchservice as the judge may require each day. The monthlysalary of each such stenographer or secretary shall be threehundred dollars ($300).

The salary shall be paid out of the salary fund of the county,or if there is none, out of such fund as other salary demandsagainst the county are paid. The salary shall be allowed andaudited in the same manner as the law requires for othersalary demands against the county.

Comment. Section 69891 is repealed to reflect the fact that eachcounty has a jury commissioner. See Code Civ. Proc. § 195 (jurycommissioner).

The section is also repealed to reflect enactment of the Trial CourtFunding Act and Trial Court Employment Protection and GovernanceAct. See Sections 71615(c)(1) (preservation of employees’ jobclassifications), 71620 (trial court personnel), 71623 (salaries), 77003(“court operations” defined), 77009 (Trial Court Operations Fund),77200 (state funding of trial court operations).

Gov’t Code § 69893 (repealed). Secretary performing duties of jurycommissioner



69893. In any county where there is a secretary of thejudges of the superior court, a majority of the judges mayrequire the secretary to perform the duties of jurycommissioner in addition to his regular duties as secretary.

Comment. Section 69893 is repealed to reflect the fact that eachcounty has a jury commissioner. See Code Civ. Proc. § 195 (jurycommissioner).

The section is also repealed to reflect enactment of the Trial CourtEmployment Protection and Governance Act. See Sections 71620 (trialcourt personnel), 71673 (authority of court).

Gov’t Code § 69894.2 (repealed). Additional superior courtcommissioners, officers, and employees


69894.2. With the approval of the board of supervisors thecourt may establish such additional titles and pay rates as arerequired and with the approval of the board of supervisorsmay appoint and employ such additional commissioners,officers, assistants and other employees as it deems necessaryfor the performance of the duties and exercise of the powersconferred by law upon it and its members. Rates ofcompensation of all officers, assistants and other employeesmay be adjusted by joint action and approval of the board ofsupervisors and a majority of the judges of the court.

Such appointments or changes in compensation madepursuant to this section shall be on an interim basis and shallexpire 90 days after the adjournment of the next regularsession of the Legislature unless ratified at such session.

Comment. Section 69894.2 is repealed to reflect:(1) Enactment of the Trial Court Employment Protection and

Governance Act. See Sections 71615(c)(1) (preservation of employees’job classifications), 71620 (trial court personnel), 71622 (subordinatejudicial officers), 71623 (salaries), 71640-71645 (employment selectionand advancement), 71673 (authority of court). See also Section 69941(appointment of official reporters).


(2) Enactment of the Trial Court Funding Act. See Sections 77001(local trial court management), 77003 (“court operations” defined),77200 (state funding of trial court operations).

Gov’t Code § 69902.5 (repealed). Inclusion in retirement system


69902.5. Any county having a retirement system for itsemployees may include in it the jury commissioner, deputyjury commissioners, and other assistants, attaches andemployees of the office of the jury commissioner of thatcounty whose salaries are paid by the county. Where suchaction is taken by any county, the included jurycommissioner, deputy jury commissioners, and otherassistants, attaches and employees of the office of the jurycommissioner shall be subject to all of the provisions of thelocal retirement system.

Comment. Section 69902.5 is repealed to reflect enactment of theTrial Court Employment Protection and Governance Act. See Sections71620 (trial court personnel), 71623 (salaries), 71624 (retirement plans),71629 (trial court employment benefits not affected), 71673 (authority ofcourt). See also Code Civ. Proc. § 195 (jury commissioner).

Gov’t Code § 71081 (repealed). Eligibility of municipal court judgeto multiple courts


71081. Whenever the judge of an existing court would beentitled pursuant to this article to become the judge of morethan one court, he or she shall file a written statement with thecounty elections official electing the judicial office to whichhe or she will assert his or her claim of eligibility. Failure tofile a statement is deemed an election by the judge to asserthis or her claim of eligibility to office in the court of thedistrict in which the existing court is located.


Comment. Section 71081 is repealed to reflect unification of themunicipal and superior courts pursuant to former Section 5(e) of ArticleVI of the California Constitution.

Gov’t Code §§ 71340-71342 (repealed). Sessions of court


Comment. Sections 71340-71342 are repealed to reflect:(1) Unification of the municipal and superior courts pursuant to former

Section 5(e) of Article VI of the California Constitution. See Section69741.5 (number of sessions permissible at same time). Cf. Section71042.5 (preservation of judicial districts for purpose of publication).


(3) Repeal of Section 68812.

Gov’t Code § 71601 (amended). Definitions


71601. For purposes of this chapter, the followingdefinitions shall apply:

(a) “Appointment” means the offer to and acceptance by aperson of a position in the trial court in accordance with thischapter and the trial court’s personnel policies, procedures,and plans.

(b) “Employee organization” means any organization thatincludes trial court employees and has as one of its primarypurposes representing those employees in their relations withthe trial court.

(c) “Hiring” means appointment as defined in subdivision(a).

(d) “Mediation” means effort by an impartial third party toassist in reconciling a dispute regarding wages, hours, andother terms and conditions of employment betweenrepresentatives of the trial court and the recognized employeeorganization or recognized employee organizations throughinterpretation, suggestion, and advice.


(e) “Meet and confer in good faith” means that a trial courtor representatives as it may designate, and representatives ofrecognized employee organizations, shall have the mutualobligation personally to meet and confer promptly uponrequest by either party and continue for a reasonable period oftime in order to exchange freely information, opinions, andproposals, and to endeavor to reach agreement on matterswithin the scope of representation. The process shouldinclude adequate time for the resolution of impasses wherespecific procedures for resolution are contained in this chapteror in a local rule, or when the procedures are utilized bymutual consent.

(f) “Personnel rules,” “personnel policies, procedures, andplans,” and “rules and regulations” mean policies, procedures,plans, rules, or regulations adopted by a trial court or itsdesignee pertaining to conditions of employment of trial courtemployees, subject to meet and confer in good faith.

(g) “Promotion” means promotion within the trial court asdefined in the trial court’s personnel policies, procedures, andplans, subject to meet and confer in good faith.

(h) “Recognized employee organization” means anemployee organization that has been formally acknowledgedto represent trial court employees by the county underSections 3500 to 3510, inclusive, prior to the implementationdate of this chapter, or by the trial court under Rules 2201 to2210, inclusive, of the California Rules of Court, as thoserules read on April 23, 1997, Sections 70210 to 70219,inclusive, or Article 3 (commencing with Section 71630) ofthis chapter.

(i) “Subordinate judicial officer” means an officer appointedto perform subordinate judicial duties as authorized bySection 22 of Article VI of the California Constitution,including, but not limited to, a court commissioner, probatecommissioner, child support commissioner, referee, traffic


trial commissioner, traffic referee, juvenile court referee,juvenile hearing officer, and temporary judge pro tempore.

(j) “Transfer” means transfer within the trial court asdefined in the trial court’s personnel policies, procedures, andplans, subject to meet and confer in good faith.

(k) “Trial court” means a superior court or a municipalcourt.

(l) “Trial court employee” means a person who is both ofthe following:

(1) Paid from the trial court’s budget, regardless of thefunding source. For the purpose of this paragraph, “trialcourt’s budget” means funds from which the presiding judgeof a trial court, or his or her designee, has authority to control,authorize, and direct expenditures, including, but not limitedto, local revenues, all grant funds, and trial court operationsfunds.

(2) Subject to the trial court’s right to control the mannerand means of his or her work because of the trial court’sauthority to hire, supervise, discipline, and terminateemployment. For purposes of this paragraph only, the “trialcourt” includes the judges of a trial court or their appointeeswho are vested with or delegated the authority to hire,supervise, discipline, and terminate.

(m) A person is a “trial court employee” if and only if bothparagraphs (1) and (2) of subdivision (l) are true irrespectiveof job classification or whether the functions performed bythat person are identified in Rule 810 of the California Rulesof Court. The phrase “trial court employee” includes thosesubordinate judicial officers who satisfy paragraphs (1) and(2) of subdivision (l). The phrase “trial court employee” doesnot include temporary employees hired through agencies,jurors, individuals hired by the trial court pursuant to anindependent contractor agreement, individuals for whom thecounty or trial court reports income to the Internal Revenue


Service on a Form 1099 and does not withhold employmenttaxes, sheriffs, and judges whether elected or appointed. Anytemporary employee, whether hired through an agency or not,shall not be employed in the trial court for a period exceeding180 calendar days.

Comment. Subdivision (i) of Section 71601 is amended to refer totypes of subordinate judicial officers. See former Section 72450 (traffictrial commissioners); Fam. Code §§ 4250-4253 (child supportcommissioners); Welf. & Inst. Code § 255 (juvenile hearing officers).Subdivision (i) is also amended for consistency of terminology. See Cal.Const. art. VI, § 21 (temporary judge).

Subdivision (k) is amended to reflect unification of the municipal andsuperior courts pursuant to former Section 5(e) of Article VI of theCalifornia Constitution.

Gov’t Code § 71622 (amended). Subordinate judicial officers


71622. (a) Each trial court may establish and may appointsuch subordinate judicial officers as are deemed necessary forthe performance of subordinate judicial duties as areauthorized by law to be performed by subordinate judicialofficers. However, the number and type of subordinatejudicial officers in a trial court shall be subject to approval bythe Judicial Council. Subordinate judicial officers shall serveat the pleasure of the trial court.

(b) The appointment or termination of a subordinatejudicial officer shall be made by order of the presiding judgeor another judge or a committee to whom appointment ortermination authority is delegated by the court, entered in theminutes of the court.

(c) The Judicial Council shall promulgate rules establishingthe minimum qualifications and training requirements forsubordinate judicial officers.

(d) The presiding judge of a superior court may cross-assignone type of subordinate judicial officer to exercise all the


powers and perform all the duties authorized by law to beperformed by another type of subordinate judicial officer, butonly if the person cross-assigned satisfies the minimumqualifications and training requirements for the newassignment established by the Judicial Council pursuant tosubdivision (c).

(e) The superior courts of two or more counties may appointthe same person as court commissioner.

(f) As of the implementation date of this chapter, all personswho were authorized to serve as subordinate judicial officerspursuant to other provisions of law shall be authorized by thissection to serve as subordinate judicial officers at theirexisting salary rate, which may be a percentage of the salaryof a judicial officer.

Comment. Subdivision (b) of Section 71622 is amended to make clearthat the court’s authority to appoint and terminate a subordinate judicialofficer includes authority to delegate the appointment or terminationdecision. For example, the court may delegate to the presiding judge ofthe juvenile court authority to appoint or terminate a juvenile courtreferee. Cf. former Welf. & Inst. Code § 247 (juvenile court referee).

The authority to delegate a subordinate judicial officer appointment ortermination decision is a specific instance of the general authority of atrial court to manage its affairs in a manner appropriate for itscircumstances. Cf. Section 77001; Cal. R. Ct. 6.601 et seq. (trial courtmanagement).

Gov’t Code § 73648 (repealed). Sessions within the El Cajon JudicialDistrict


73648. The municipal court shall hold sessions at suchlocation, or locations, within the El Cajon Judicial District asthe Board of Supervisors of the County of San Diego maydesignate.

Comment. Section 73648 is repealed to reflect:


(1) Unification of the municipal and superior courts in San DiegoCounty pursuant to former Section 5(e) of Article VI of the CaliforniaConstitution, effective December 1, 1998.


Gov’t Code § 74748 (repealed). Sessions within the South BayJudicial District


74748. The municipal court shall hold sessions in the Cityof Chula Vista and at such other places as the board ofsupervisors, by ordinance, may designate.

Comment. Section 74748 is repealed to reflect:(1) Unification of the municipal and superior courts in San Diego

County pursuant to former Section 5(e) of Article VI of the CaliforniaConstitution, effective December 1, 1998.


Gov’t Code §§ 74920-74920.6 (repealed). Tulare County MunicipalCourt District


Comment. Sections 74920-74920.6 are repealed to reflect:(1) Unification of the municipal and superior courts in Tulare County

pursuant to former Section 5(e) of Article VI of the CaliforniaConstitution, effective July 27, 1998.


HARBORS AND NAVIGATION CODE

Harb. & Nav. Code § 4042 (amended). Harbor commissioners

SEC. ___. Section 4042 of the Harbors and NavigationCode is amended to read:

4042. (a) Each commissioner shall, within 20 days afterreceiving notice of appointment, qualify by taking and


subscribing the constitutional oath of office, and by executingand filing with the clerk of the county wherein thecommissioner is appointed, a bond in a sum to be fixed by theboard of supervisors which bond, when approved by the judgeor judges of the superior court of the county, shall be recordedin the office of the county recorder, as other official bonds arerecorded, at any time subsequent to 20 days after theappointment.

(b) The commissioners, or a majority of them havingqualified, shall meet at some convenient place in the countyand organize by electing one of their number chairman.

Comment. Subdivision (a) of Section 4042 is amended for consistencyof terminology. See Code Civ. Proc. §§ 995.020 (applicability ofchapter), 995.410 (approval of bond by court). The reference to “thejudge” is also obsolete since every superior court has at least twojudgeships as a result of trial court unification. See Gov’t Code § 69580et seq. (number of judges).

PENAL CODE

Penal Code § 825 (amended). Appearance before magistrate

SEC. ___. Section 825 of the Penal Code is amended toread:

825. (a)(1) Except as provided in paragraph (2), thedefendant shall in all cases be taken before the magistratewithout unnecessary delay, and, in any event, within 48 hoursafter his or her arrest, excluding Sundays and holidays.

(2) When the 48 hours prescribed by paragraph (1) expire ata time when the court in which the magistrate is sitting is notin session, that time shall be extended to include the durationof the next regular court session on the judicial dayimmediately following. If the 48-hour period expires at a timewhen the court in which the magistrate is sitting is in session,the arraignment may take place at any time during thatsession. However, when the defendant’s arrest occurs on aWednesday after the conclusion of the day’s regular court


session, and provided that the Wednesday is not a courtholiday, the defendant shall be taken before the magistrate notlater than the following Friday, provided that the Friday is nota court holiday.

(b) After the arrest, any attorney at law entitled to practicein the courts of record of California, may, at the request of theprisoner or any relative of the prisoner, visit the prisoner. Anyofficer having charge of the prisoner who willfully refuses orneglects to allow that attorney to visit a prisoner is guilty of amisdemeanor. Any officer having a prisoner in charge, whorefuses to allow the attorney to visit the prisoner when properapplication is made, shall forfeit and pay to the partyaggrieved the sum of five hundred dollars ($500), to berecovered by action in any court of competent jurisdiction.

Comment. Subdivision (a)(2) of Section 825 is amended to reflect therepeal of Government Code Section 69741 (regular and special sessions).

Penal Code § 830.1 (amended). Peace officers

SEC. ___. Section 830.1 of the Penal Code is amended toread:

830.1. (a) Any sheriff, undersheriff, or deputy sheriff,employed in that capacity, of a county, any chief of police ofa city or chief, director, or chief executive officer of aconsolidated municipal public safety agency that performspolice functions, any police officer, employed in that capacityand appointed by the chief of police or chief, director, or chiefexecutive of a public safety agency, of a city, any chief ofpolice, or police officer of a district, including police officersof the San Diego Unified Port District Harbor Police,authorized by statute to maintain a police department, anymarshal or deputy marshal of a superior court or county court,any port warden or special officer of the Harbor Departmentof the City of Los Angeles, or any inspector or investigatoremployed in that capacity in the office of a district attorney, is


a peace officer. The authority of these peace officers extendsto any place in the state, as follows:

(1) As to any public offense committed or which there isprobable cause to believe has been committed within thepolitical subdivision that employs the peace officer or inwhich the peace officer serves.

(2) Where the peace officer has the prior consent of thechief of police or chief, director, or chief executive officer ofa consolidated municipal public safety agency, or personauthorized by him or her to give consent, if the place is withina city or of the sheriff, or person authorized by him or her togive consent, if the place is within a county.

(3) As to any public offense committed or which there isprobable cause to believe has been committed in the peaceofficer’s presence, and with respect to which there isimmediate danger to person or property, or of the escape ofthe perpetrator of the offense.

(b) The Attorney General and special agents andinvestigators of the Department of Justice are peace officers,and those assistant chiefs, deputy chiefs, chiefs, deputydirectors, and division directors designated as peace officersby the Attorney General are peace officers. The authority ofthese peace officers extends to any place in the state where apublic offense has been committed or where there is probablecause to believe one has been committed.

(c) Any deputy sheriff of the County of Los Angeles, andany deputy sheriff of the Counties of Kern, Humboldt,Imperial, Mendocino, Plumas, Riverside, San Diego, SantaBarbara, Siskiyou, Sonoma, Sutter, and Tehama who isemployed to perform duties exclusively or initially relating tocustodial assignments with responsibilities for maintainingthe operations of county custodial facilities, including thecustody, care, supervision, security, movement, andtransportation of inmates, is a peace officer whose authority


extends to any place in the state only while engaged in theperformance of the duties of his or her respective employmentand for the purpose of carrying out the primary function ofemployment relating to his or her custodial assignments, orwhen performing other law enforcement duties directed by hisor her employing agency during a local state of emergency.

Comment. Subdivision (a) of Section 830.1 is amended to make clearthat a marshal or deputy marshal may be employed by a superior court orby a county. Marshals and deputy marshals who are court employees aresubject to the provisions of the Trial Court Employment Protection andGovernance Act. See, e.g., Gov’t Code §§ 71601(l) (“trial courtemployee” defined), 71615(c)(5) (trial court as employer of all trial courtemployees), 71620 (trial court personnel).

Penal Code § 853.6a (amended). Appearance before juvenile court

SEC. ___. Section 853.6a of the Penal Code is amended toread:

853.6a. (a) Except as provided in subdivision (b), if theperson arrested appears to be under the age of 18 years, andthe arrest is for a violation listed in Section 256 of theWelfare and Institutions Code, other than an offenseinvolving a firearm, the notice under Section 853.6 shallinstead provide that the person shall appear before thejuvenile court, a juvenile court referee, or a juvenile traffichearing officer within the county in which the offensecharged is alleged to have been committed, and the officershall instead, as soon as practicable, file the duplicate noticewith the prosecuting attorney unless the prosecuting attorneydirects the officer to file the duplicate notice with the clerk ofthe juvenile court, the juvenile court referee, or the juveniletraffic hearing officer. If the notice is filed with theprosecuting attorney, within 48 hours before the datespecified on the notice to appear, the prosecutor, within his orher discretion, may initiate proceedings by filing the notice ora formal petition with the clerk of the juvenile court, or the


juvenile court referee or juvenile traffic hearing officer,before whom the person is required to appear by the notice.

(b) A juvenile court may exercise the option of notrequiring a mandatory appearance of the juvenile before thecourt for infractions contained in the Vehicle Code, exceptthose related to drivers’ licenses as specified in Division 6(commencing with Section 12500), those related to financialresponsibility as specified in Division 7 (commencing withSection 16000), speeding violations as specified in Division11 (commencing with Section 21000) where the speed limitwas violated by 15 or more miles per hour, and thoseinvolving the use or possession of alcoholic beverages asspecified in Division 11 (commencing with Section 12500).

(c) In counties where an Expedited Youth AccountabilityProgram is operative, as established under Section 660.5 ofthe Welfare and Institutions Code, a peace officer may issue acitation and written promise to appear in juvenile court orrecord the minor’s refusal to sign the promise to appear andserve notice to appear in juvenile court, according to therequirements and procedures provided in that section.

(d) Nothing in this section shall be construed to limit thediscretion of a peace officer or other person with the authorityto enforce laws pertaining to juveniles to take the minor intocustody pursuant to Article 15 (commencing with Section625) of the Welfare and Institutions Code.

Comment. Subdivision (a) of Section 853.6a is amended to reflect theredesignation of traffic hearing officers as juvenile hearing officers. See1997 Cal. Stat. ch. 679.

Penal Code § 896 (amended). Selection of grand jurors


896. (a) Immediately after such a n order pursuant toSection 895 is made, the court shall select the grand jurorsrequired by personal interview for the purpose of ascertaining


whether they possess the qualifications prescribed bysubdivision (a) of Section 893. If a person so interviewed, inthe opinion of the court, possesses such qualifications, inorder for his name to be listed he the person shall sign astatement declaring that he the person will be available forjury service for the number of hours usually required of amember of the grand jury in that county.

(b) The selections shall be made of men and women whoare not exempt from serving and who are suitable andcompetent to serve as grand jurors pursuant to Sections 893,898, and 899. The court shall list the persons so selected andrequired by the order to serve as grand jurors during theensuing fiscal year of the county, or until a new list of grandjurors is provided, and shall at once place this list in thepossession of the county clerk jury commissioner.

Comment. Subdivision (b) of Section 896 is amended to reflectelimination of the county clerk’s role as ex officio clerk of the superiorcourt. See former Gov’t Code § 26800 (county clerk acting as clerk ofsuperior court). Subdivision (b) is also amended to reflect enactment ofthe Trial Court Funding Act. See Gov’t Code §§ 77003 (“courtoperations” defined), 77200 (state funding of trial court operations); Cal.R. Ct. 810(d), Function 2 (salaries, wages, and benefits of jurycommissioner and jury services staff, including grand jury selection,allowable court operations costs). See also Cal. Standards Jud. Admin. §17(b) (list of qualified grand jury candidates prepared by jurycommissioner).

Penal Code § 900 (amended). Duties of jury commissioner


900. On receiving the list of persons selected by the court,the county clerk jury commissioner shall file it in his the jurycommissioner’s office and have such list, which shall includethe name of the judge who selected each person on the list,published one time in a newspaper of general circulation, asdefined in Section 6000 of the Government Code, in the


county. The county clerk jury commissioner shall thereupondo either of the following:

(a) Write down the names on the list onto separate pieces ofpaper of the same size and appearance, fold each piece so asto conceal the name thereon, and deposit the pieces in a boxto be called the “grand jury box.”

(b) Assign a number to each name on the list and place, in abox to be called the “grand jury box,” markers of the samesize, shape, and color, each containing a number whichcorresponds with a number on the list.

Comment. Section 900 is amended to reflect elimination of the countyclerk’s role as ex officio clerk of the superior court. See former Gov’tCode § 26800 (county clerk acting as clerk of superior court).

The section is also amended to reflect enactment of the Trial CourtFunding Act. See Gov’t Code §§ 77003 (“court operations” defined),77200 (state funding of trial court operations); Cal. R. Ct. 810(d),Function 2 (salaries, wages, and benefits of jury commissioner and juryservices staff, including grand jury selection, allowable court operationscosts). See also Cal. Standards Jud. Admin. § 17(b) (list of qualifiedgrand jury candidates prepared by jury commissioner).

Penal Code § 903 (repealed). Applicability of article

SEC. ___. Section 903 of the Penal Code is repealed.903. This article applies in each county in which a jury

commissioner is appointed pursuant to Section 195 of theCode of Civil Procedure and in each county in which thesecretary of the judges of the superior court performs theduties of jury commissioner pursuant to Section 69893 of theGovernment Code.

Comment. Section 903 is repealed to reflect:(1) The fact that each county has a jury commissioner. See Code Civ.

Proc. § 195 (jury commissioner).(2) The repeal of Government Code Section 69893.It should be noted that application of the article is not mandatory. See

Sections 903.1 (judges may adopt written rules or instructions to guidejury commissioner), 903.4 (judges may select grand jurors without regardto list returned by jury commissioner); People v. Goodspeed, 22 Cal.


App. 3d 690, 701, 99 Cal. Rptr. 696 (1972) (provisions of Penal Code §903 et seq. not mandatory).

Penal Code § 904 (amended). Drawing of grand jury


904. Every superior court, whenever in its opinion thepublic interest so requires, shall make and file with the countyclerk jury commissioner an order directing a grand jury to bedrawn. Such order shall designate the number of grand jurorsto be drawn, which shall not be less than 29 or more than 40in counties having a population exceeding four million andnot less than 25 nor more than 30 in other counties.

Comment. Section 904 is amended to reflect elimination of the countyclerk’s role as ex officio clerk of the superior court. See former Gov’tCode § 26800 (county clerk acting as clerk of superior court).

The section is also amended to reflect enactment of the Trial CourtFunding Act. See Gov’t Code §§ 77003 (“court operations” defined),77200 (state funding of trial court operations); Cal. R. Ct. 810(d),Function 2 (salaries, wages, and benefits of jury commissioner and juryservices staff, including grand jury selection, allowable court operationscosts). See also Cal. Standards Jud. Admin. § 17(b) (list of qualifiedgrand jury candidates prepared by jury commissioner).

Penal Code § 908 (amended). Selection of grand jury


908. If the required number of the persons summoned asgrand jurors are present and not excused, such requirednumber shall constitute the grand jury. If more than therequired number of such persons are present, the clerk jurycommissioner shall write their names on separate ballots,which he the jury commissioner shall fold so that the namescannot be seen, place them in a box, and draw out therequired number of them. The persons whose names are onthe ballots so drawn shall constitute the grand jury. If lessthan the required number of such persons are present, the


panel may be filled as provided in Section 226 211 of theCode of Civil Procedure. If more of the persons summoned tocomplete a grand jury attend than are required, the requisitenumber shall be obtained by writing the names of thosesummoned and not excused on ballots, depositing them in abox, and drawing as above provided.

Comment. Section 908 is amended to replace “clerk” with “jurycommissioner” for consistency with trial court funding principles. SeeCal. R. Ct. 810(d), Function 2 (salaries, wages, and benefits of jurycommissioner and jury services staff, including grand jury selection,allowable court operations costs). See also Cal. Standards Jud. Admin. §17(b) (list of qualified grand jury candidates prepared by jurycommissioner).

The section is also amended to correct a reference to former Code ofCivil Procedure Section 226.

Penal Code § 908.1 (amended). Filling of vacancies


908.1. When, after the grand jury consisting of the requirednumber of persons has been impaneled pursuant to law, themembership is reduced for any reason, such vacancies withinan existing grand jury may be filled, so as to maintain the fullmembership at the required number of persons, by the clerkof the superior court jury commissioner, in the presence of thecourt, drawing out sufficient names to fill the vacancies fromthe grand jury box, pursuant to law, or from a special venireas provided in Section 226 211 of the Code of CivilProcedure. No person selected as a grand juror to fill avacancy pursuant to this section shall vote as a grand juror onany matter upon which evidence has been taken by the grandjury prior to the time of his the person’s selection.

Comment. Section 908.1 is amended to replace “clerk of the superiorcourt” with “jury commissioner” for consistency with trial court fundingprinciples. See Cal. R. Ct. 810(d), Function 2 (salaries, wages, andbenefits of jury commissioner and jury services staff, including grandjury selection, allowable court operations costs). See also Cal. Standards


Jud. Admin. § 17(b) (list of qualified grand jury candidates prepared byjury commissioner).

The section is also amended to correct a reference to former Code ofCivil Procedure Section 226.

Penal Code § 908.2 (amended). Staggered selection procedure


908.2. (a) Upon the decision of the superior court pursuantto Section 901 to adopt this method of selecting grand jurors,when the required number of persons have been impaneled asthe grand jury pursuant to law, the clerk jury commissionershall write the names of each such person on separate ballots.The clerk jury commissioner shall fold the ballots so that thenames cannot be seen, place them in a box, and draw out halfof such ballots, or in a county where the number of grandjurors is uneven, one more than half. The persons whosenames are on the ballots so drawn shall serve for 12 monthsuntil July 1 of the following year. The persons whose namesare not on the ballots so drawn shall serve for six months untilJanuary 1 of the following year.

(b) Each subsequent year, on January 2 and July 2, asufficient number of grand jurors shall be impaneled toreplace those whose service concluded the previous day.Those persons impaneled on January 2, shall serve untilJanuary 1 of the following year. Those persons impaneled onJuly 2, shall serve until July 1 of the following year. Noperson shall serve on the grand jury for more than one year.

(c) The provisions of subdivisions (a) and (b) shall not beapplicable do not apply to the selection of grand jurors for anadditional grand jury authorized pursuant to Sections 904.5,Section 904.6, 904.7, 904.8, and 904.9.

Comment. Subdivision (a) of Section 908.2 is amended to replace“clerk” with “jury commissioner” for consistency with trial court fundingprinciples. See Cal. R. Ct. 810(d), Function 2 (salaries, wages, andbenefits of jury commissioner and jury services staff, including grand


jury selection, allowable court operations costs). See also Cal. StandardsJud. Admin. § 17(b) (list of qualified grand jury candidates prepared byjury commissioner).

Subdivision (c) is amended to reflect the repeal of Sections 904.5,904.7, 904.8, and 904.9.

Penal Code § 1269b (amended). Bail

SEC. ___. Section 1269b of the Penal Code is amended toread:

1269b. (a) The officer in charge of a jail where an arrestedperson is held in custody, an officer of a sheriff’s departmentor police department of a city who is in charge of a jail or isemployed at a fixed police or sheriff’s facility and is actingunder an agreement with the agency that keeps the jailwherein an arrested person is held in custody, an employee ofa sheriff’s department or police department of a city who isassigned by the department to collect bail, the clerk of themunicipal superior court of the judicial district county inwhich the offense was alleged to have been committed, andthe clerk of the superior court in which the case against thedefendant is pending may approve and accept bail in theamount fixed by the warrant of arrest, schedule of bail, ororder admitting to bail in cash or surety bond executed by acertified, admitted surety insurer as provided in the InsuranceCode, to issue and sign an order for the release of the arrestedperson, and to set a time and place for the appearance of thearrested person before the appropriate court and give noticethereof.

(b) If a defendant has appeared before a judge of the courton the charge contained in the complaint, indictment, orinformation, the bail shall be in the amount fixed by the judgeat the time of the appearance; if that appearance has not beenmade, the bail shall be in the amount fixed in the warrant ofarrest or, if no warrant of arrest has been issued, the amountof bail shall be pursuant to the uniform countywide schedule


of bail for the county in which the defendant is required toappear, previously fixed and approved as provided insubdivisions (c) and (d).

(c) It is the duty of the superior and municipal court judgesin each county to prepare, adopt, and annually revise, by amajority vote, at a meeting called by the presiding judge ofthe superior court of the county, a uniform countywideschedule of bail for all bailable felony offenses and for allmisdemeanor and infraction offenses except Vehicle Codeinfractions. The penalty schedule for infraction violations ofthe Vehicle Code shall be established by the Judicial Councilin accordance with Section 40310 of the Vehicle Code.

(d) A court may by local rule prescribe the procedure bywhich the uniform countywide schedule of bail is prepared,adopted, and annually revised by the judges. If a court doesnot adopt a local rule, the uniform countywide schedule ofbail shall be prepared, adopted, and annually revised by amajority of the judges.

(e) In adopting a uniform countywide schedule of bail forall bailable felony offenses the judges shall consider theseriousness of the offense charged. In considering theseriousness of the offense charged the judges shall assign anadditional amount of required bail for each aggravating orenhancing factor chargeable in the complaint, including, butnot limited to, additional bail for charges alleging facts thatwould bring a person within any of the following sections:

Section 667.5, 667.51, 667.6, 667.8, 667.85, 667.9, 667.10,12022, 12022.1, 12022.2, 12022.3, 12022.4, 12022.5,12022.53, 12022.6, 12022.7, 12022.8, or 12022.9, or Section11356.5, 11370.2, or 11370.4 of the Health and Safety Code.

In considering offenses wherein a violation of Chapter 6(commencing with Section 11350) of Division 10 of theHealth and Safety Code is alleged, the judge shall assign an


additional amount of required bail for offenses involvinglarge quantities of controlled substances.

(d) The municipal court judges in each county, at a meetingcalled by the presiding judge of the municipal court at eachcounty seat, or the superior court judges in each county inwhich there is no municipal court, at a meeting called by thepresiding judge of the superior court, shall prepare, adopt, andannually revise, by a majority vote, a uniform, countywideschedule of bail for all misdemeanor and infraction offensesexcept Vehicle Code infractions. The penalty schedule forinfraction violations of the Vehicle Code shall be establishedby the Judicial Council in accordance with Section 40310 ofthe Vehicle Code.

(e) (f) Each The countywide bail schedule shall contain alist of the offenses and the amounts of bail applicable theretoas the judges determine to be appropriate. If the schedules doschedule does not list all offenses specifically, they i t shallcontain a general clause for designated amounts of bail as thejudges of the county determine to be appropriate for all theoffenses not specifically listed in the schedules schedule. Acopy of the countywide bail schedule shall be sent to theofficer in charge of the county jail, to the officer in charge ofeach city jail within the county, to each superior andmunicipal court judge and commissioner in the county, and tothe Judicial Council.

(f) (g) Upon posting bail, the defendant or arrested personshall be discharged from custody as to the offense on whichthe bail is posted.

All money and surety bonds so deposited with an officerauthorized to receive bail shall be transmitted immediately tothe judge or clerk of the court by which the order was madeor warrant issued or bail schedule fixed. If, in the case offelonies, an indictment is filed, the judge or clerk of the court


shall transmit all of the money and surety bonds to the clerkof the court.

(g) (h) If a defendant or arrested person so released fails toappear at the time and in the court so ordered upon his or herrelease from custody, Sections 1305 and 1306 apply.

Comment. Section 1269b is amended to reflect unification of themunicipal and superior courts pursuant to former Section 5(e) of ArticleVI of the California Constitution. Cf. Code Civ. Proc. § 38 (judicialdistricts). Under subdivision (c), a single uniform countywide scheduleof bail for bailable felonies, misdemeanors, and infractions (exceptVehicle Code infractions) is required.

Subdivision (d) is added to permit each superior court to provide itsown procedure for the preparation, adoption, and annual revision of acountywide schedule of bail by the judges. Where a court does notprovide its own procedure, the schedule of bail is to be prepared,adopted, and annually revised by a majority of the judges of the court.

Penal Code § 3075 (amended). Board of parole commissioners


3075. (a) There is in each county a board of parolecommissioners, consisting of each of the following:

(1) The sheriff, or his or her designee, or, in a county with adepartment of corrections, the director of that department.

(2) The probation officer, or his or her designee.(3) A member, not a public official, to be selected from the

public by the presiding judge, if any, or, if none, by the seniorjudge in point of service, of the superior court.

(b) The public member of the county board of parolecommissioners or his or her alternate shall be entitled to his orher actual traveling and other necessary expenses incurred inthe discharge of his or her duties. In addition, the publicmember or his or her alternate shall be entitled to per diem atany rate that may be provided by the board of supervisors.The public member or his or her alternate shall hold office fora term of one year and in no event for a period exceeding


three consecutive years. The term shall commence on the dateof appointment.

Comment. Subdivision (a)(3) of Section 3075 is amended to deletelanguage referring to the senior judge. Every superior court has apresiding judge. See Gov’t Code §§ 69508, 69508.5.

PUBLIC UTILITIES CODE

Pub. Util. Code § 7814 (amended). Penalty for overcharge of fare

SEC. ___. Section 7814 of the Public Utilities Code isamended to read:

7814. Any corporation, or agent or employee thereof,demanding or charging a greater sum of money for fare on thecars of a street railroad than that fixed as provided by lawforfeits to the person from whom the sum is received, or whois thus overcharged, the sum of two hundred dollars ($200), tobe recovered in a civil action, in any justice’s court havingjurisdiction thereof, against the corporation.

Comment. Section 7814 is amended to eliminate an obsolete referenceto the former justice’s court (justice of the peace court). Cal. Const. art.VI, § 1. For small claims jurisdiction, see Code Civ. Proc. § 116.220. Forlimited civil cases, see Code Civ. Proc. § 85. For unlimited civil cases,see Code Civ. Proc. § 88.

STREETS AND HIGHWAYS CODE

Sts. & Hy. Code § 30865 (amended). Estimate by commissioners

SEC. ___. Section 30865 of the Streets and Highways Codeis amended to read:

30865. If the estimate of the board is not agreed to by theowner or keeper of the bridge or ferry, it shall be fixed bythree commissioners, one to be appointed by the board, oneby the owner and keeper, and the third by the presiding judgeof the superior court, who shall hear testimony and fix thevalue and cost according to the facts, and report it to theboard of supervisors under oath. In all estimates of the fair


cash value of the bridge or ferry the value of the franchiseshall not be taken into consideration.

Comment. Section 30865 is amended to replace language referring to“the judge” with a reference to the presiding judge. Every superior courthas a presiding judge. See Gov’t Code §§ 69508, 69508.5. Where a courthas only one judge due to a vacancy or otherwise, the reference to the“presiding judge” means the sole judge of the court. See Gov’t Code §69508.5 (presiding judge).

VEHICLE CODE

Veh. Code § 1816 (amended). Report of offenses

SEC. ___. Section 1816 of the Vehicle Code is amended toread:

1816. Every judge of the juvenile court, juvenile traffichearing officer, duly constituted referee of a juvenile court, orother person responsible for the disposition of cases involvingtraffic offenses required to be reported under Section 1803committed by persons under 18 years of age shall keep a fullrecord of every case in which a person is charged with such aviolation, and shall report the offense to the department at itsoffice in Sacramento not more than 30 days after the date onwhich it was committed, and in no case less than 10 days afteradjudication. The report required by this section shall berequired for any determination that a minor committed theviolation, including any determination that because of the actthe minor is a person described in Section 601 or 602 of theWelfare and Institutions Code or that a program ofsupervision should be instituted for the minor. No report shallbe made if it is found that the alleged offense was notcommitted.

The report required by this section shall be made upon aform furnished by the department and shall contain allnecessary information as to the identity of the offender, thearresting agency, the date and nature of the offense, and thedate the finding was made.


Comment. Section 1816 is amended to reflect the redesignation oftraffic hearing officers as juvenile hearing officers. See 1997 Cal. Stat.ch. 679.

Veh. Code § 13105 (amended). Definitions


13105. For the purposes of this chapter, “convicted” or“conviction” includes a finding by a judge of a juvenile court,a juvenile traffic hearing officer, or referee of a juvenile courtthat a person has committed an offense, and “court” includesa juvenile court except as otherwise specifically provided.


Veh. Code § 13352 (amended). Suspension or revocation of drivingprivilege


13352. (a) The department shall immediately suspend orrevoke, or record the court-administered suspension orrevocation of, the privilege of any person to operate a motorvehicle upon receipt of an abstract of the record of any courtshowing that the person has been convicted of a violation ofSection 23152 or 23153 or subdivision (a) of Section 23109,or upon receipt of a report of a judge of the juvenile court, ajuvenile traffic hearing officer, or a referee of a juvenile courtshowing that the person has been found to have committed aviolation of Section 23152 or 23153 or subdivision (a) ofSection 23109. If any offense specified in this section occursin a vehicle defined in Section 15210, the suspension orrevocation specified below shall apply to the noncommercialdriving privilege. The commercial driving privilege shall bedisqualified as specified in Sections 15300 to 15302,


inclusive. For the purposes of this section, suspension orrevocation shall be as follows:

(1) Upon a conviction or finding of a violation of Section23152 punishable under Section 23536, the privilege shall besuspended for a period of six months. The privilege shall notbe reinstated until the person gives proof of financialresponsibility and gives proof satisfactory to the departmentof successful completion of a driving-under-the-influenceprogram licensed pursuant to Section 11836 of the Health andSafety Code described in subdivision (b) of Section 23538.

Instead of suspending the person’s driving privilege, thedepartment shall issue a restricted license upon receipt of anabstract of record from the court certifying the court hasgranted probation to the person based on the conditionsspecified in paragraph (2) of subdivision (a) of, andsubdivision (b) of, Section 23538.

(2) Upon a conviction or finding of a violation of Section23153 punishable under Section 23554, the privilege shall besuspended for a period of one year. The privilege shall not bereinstated until the person gives proof of financialresponsibility and gives proof satisfactory to the departmentof successful completion of a driving-under-the-influenceprogram licensed pursuant to Section 11836 of the Health andSafety Code as described in Section 23556.

(3) Except as provided in Section 13352.5, upon aconviction or finding of a violation of Section 23152punishable under Section 23540, the privilege shall besuspended for two years. The privilege shall not be reinstateduntil the person gives proof of financial responsibility andgives proof satisfactory to the department of successfulcompletion of a driving-under-the-influence program licensedpursuant to Section 11836 of the Health and Safety Code asdescribed in Section 23542. For the purposes of thisparagraph, enrollment, participation, and completion of an


approved program shall be subsequent to the date of thecurrent violation. No credit shall be given to any programactivities completed prior to the date of the current violation.The department shall advise the person that after completionof 12 months of the suspension period, the person may applyto the department for a restricted driver’s license, subject tothe following conditions:

(A) The person has satisfactorily provided, subsequent tothe current underlying conviction, either of the following:

(i) Proof of enrollment in an 18-month driving-under-the-influence program licensed pursuant to Section 11836 of theHealth and Safety Code.

(ii) Proof of enrollment in a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of theHealth and Safety Code, if available in the county of theperson’s residence or employment.

(B) The person agrees, as a condition of the restriction, tocontinue satisfactory participation in the program described insubparagraph (A).

(C) The person submits the “Verification of Installation”form described in paragraph (2) of subdivision (e) of Section13386.

(D) The person agrees to maintain the ignition interlockdevice as required under subdivision (g) of Section 23575.

(E) The person provides proof of financial responsibility, asdefined in Section 16430.

(F) The person pays all administrative fees or reissue feesand any restriction fee required by the department.

(G) The restriction shall remain in effect for the periodrequired in subdivision (f) of Section 23575.

(4) Except as provided in this paragraph, upon a convictionor finding of a violation of Section 23153 punishable underSection 23560, the privilege shall be revoked for a period ofthree years. The privilege shall not be reinstated until the


person gives proof of financial responsibility, and the persongives proof satisfactory to the department of successfulcompletion of a driving-under-the-influence program licensedpursuant to Section 11836 of the Health and Safety Code asdescribed in Section 23562. For the purposes of thisparagraph, enrollment, participation, and completion of anapproved program shall be subsequent to the date of thecurrent violation. No credit shall be given to any programactivities completed prior to the date of the current violation.The department shall advise the person that after thecompletion of 18 months of the revocation period, the personmay apply to the department for a restricted driver’s license,subject to the following conditions:

(A) The person has satisfactorily completed, subsequent tothe current underlying conviction, either of the following:

(i) An 18-month driving-under-the-influence programlicensed pursuant to Section 11836 of the Health and SafetyCode.

(ii) The initial 18 months of a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of theHealth and Safety Code, if available in the county of theperson’s residence or employment, and the person agrees, as acondition of the restriction, to continue satisfactoryparticipation in that 30-month program.

(B) The person submits the “Verification of Installation”form described in paragraph (2) of subdivision (e) of Section13386.

(C) The person agrees to maintain the ignition interlockdevice as required under subdivision (g) of Section 23575.

(D) The person provides proof of financial responsibility, asdefined in Section 16430.

(E) The person pays all applicable reinstatement or reissuefees and any restriction fee required by the department.


(F) The restriction shall remain in effect for the periodrequired in subdivision (f) of Section 23575.

(5) Except as provided in this paragraph, upon a convictionor finding of a violation of Section 23152 punishable underSection 23546, the privilege shall be revoked for a period ofthree years. The privilege shall not be reinstated until theperson files proof of financial responsibility and gives proofsatisfactory to the department of successful completion of oneof the following programs: an 18-month driving-under-the-influence program licensed pursuant to Section 11836 of theHealth and Safety Code or, if available in the county of theperson’s residence or employment, a 30-month driving-under-the-influence program licensed pursuant to Section 11836 ofthe Health and Safety Code, or a program specified in Section8001 of the Penal Code. For the purposes of this paragraph,enrollment, participation, and completion of an approvedprogram shall be subsequent to the date of the currentviolation. No credit shall be given to any program activitiescompleted prior to the date of the current violation. Thedepartment shall advise the person that after completion of 18months of the revocation period, the person may apply to thedepartment for a restricted driver’s license, subject to thefollowing conditions:



(ii) The initial 18 months of a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of theHealth and Safety Code, if available in the county of theperson’s residence or employment, and the person agrees, as acondition of the restriction, to continue satisfactory


participation in the 30-month driving-under-the-influenceprogram.




(E) Any individual convicted of a violation of Section23152 punishable under Section 23546 may also, at any timeafter sentencing, petition the court for referral to an 18-monthdriving-under-the-influence program licensed pursuant toSection 11836 of the Health and Safety Code, or, if availablein the county of the person’s residence or employment, a 30-month driving-under-the-influence program licensed pursuantto Section 11836 of the Health and Safety Code. Unless goodcause is shown, the court shall order the referral.

(F) The person pays all applicable reinstatement or reissuefees and any restriction fee required by the department.


(6) Except as provided in this paragraph, upon a convictionor finding of a violation of Section 23153 punishable underSection 23566, the privilege shall be revoked for a period offive years. The privilege shall not be reinstated until theperson gives proof of financial responsibility and proofsatisfactory to the department of successful completion of oneof the following programs: an 18-month driving-under-the-influence program licensed pursuant to Section 11836 of theHealth and Safety Code, or, if available in the county of theperson’s residence or employment, a 30-month driving-under-the-influence program licensed pursuant to Section 11836 ofthe Health and Safety Code, or a program specified in Section


8001 of the Penal Code. For the purposes of this paragraph,enrollment, participation, and completion of an approvedprogram shall be subsequent to the date of the currentviolation. No credit shall be given to any program activitiescompleted prior to the date of the current violation. Thedepartment shall advise the person that after the completionof 30 months of the revocation period, the person may applyto the department for a restricted driver’s license, subject tothe following conditions:


(i) The initial 18 months of a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of theHealth and Safety Code, if available in the county of theperson’s residence or employment, and the person agrees, as acondition of the restriction, to continue satisfactoryparticipation in the 30-month driving-under-the-influenceprogram.

(ii) An 18-month driving-under-the-influence programlicensed pursuant to Section 11836 of the Health and SafetyCode, if a 30-month program is unavailable in the person’scounty of residence or employment.




(E) Any individual convicted of a violation of Section23153 punishable under Section 23566 may also, at any timeafter sentencing, petition the court for referral to an 18-monthdriving-under-the-influence program or, if available in thecounty of the person’s residence or employment, a 30-month


program licensed pursuant to Section 11836 of the Health andSafety Code. Unless good cause is shown, the court shallorder the referral.



(7) Except as provided in this paragraph, upon a convictionor finding of a violation of Section 23152 punishable underSection 23550 or 23550.5, or Section 23153 punishable underSection 23550.5 the privilege shall be revoked for a period offour years. The privilege shall not be reinstated until theperson gives proof of financial responsibility and proofsatisfactory to the department of successful completion of oneof the following programs: an 18-month driving-under-the-influence program licensed pursuant to Section 11836 of theHealth and Safety Code, or, if available in the county of theperson’s residence or employment, a 30-month driving-under-the-influence program licensed pursuant to Section 11836 ofthe Health and Safety Code, or a program specified in Section8001 of the Penal Code. For the purposes of this paragraph,enrollment, participation, and completion of an approvedprogram shall be subsequent to the date of the currentviolation. No credit shall be given to any program activitiescompleted prior to the date of the current violation. Thedepartment shall advise the person that after the completionof 24 months of the revocation period, the person may applyto the department for a restricted driver’s license, subject tothe following conditions:




(ii) The initial 18 months of a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of theHealth and Safety Code, if available in the county of theperson’s residence or employment, and the person agrees, as acondition of the restriction, to continue satisfactoryparticipation in the 30-month driving-under-the-influenceprogram.




(E) Any individual convicted of a violation of Section23152 punishable under Section 23550 may also, at any timeafter sentencing, petition the court for referral to an 18-monthdriving-under-the-influence program or, if available in thecounty of the person’s residence or employment, a 30-monthdriving-under-the-influence program licensed pursuant toSection 11836 of the Health and Safety Code. Unless goodcause is shown, the court shall order the referral.



(8) Upon a conviction or finding of a violation ofsubdivision (a) of Section 23109 punishable undersubdivision (e) of that section, the privilege shall besuspended for a period of 90 days to six months, if and asordered by the court.

(9) Upon a conviction or finding of a violation ofsubdivision (a) of Section 23109 punishable undersubdivision (f) of that section, the privilege shall be


suspended for a period of six months, if the court orders thedepartment to suspend the privilege. The privilege shall notbe reinstated until the person gives proof of financialresponsibility.

(b) For the purpose of paragraphs (2) to (9), inclusive, ofsubdivision (a), the finding of the juvenile court judge, thejuvenile traffic hearing officer, or the referee of a juvenilecourt of a commission of a violation of Section 23152 or23153 or subdivision (a) of Section 23109, as specified insubdivision (a) of this section, is a conviction.

(c) Each judge of a juvenile court, juvenile traffic hearingofficer, or referee of a juvenile court shall immediately reportthe findings specified in subdivision (a) to the department.

(d) A conviction of an offense in any state, territory, orpossession of the United States, the District of Columbia, theCommonwealth of Puerto Rico, or Canada that, if committedin this state, would be a violation of Section 23152, is aconviction of Section 23152 for purposes of this section, anda conviction of an offense that, if committed in this state,would be a violation of Section 23153, is a conviction ofSection 23153 for purposes of this section. The departmentshall suspend or revoke the privilege to operate a motorvehicle pursuant to this section upon receiving notice of thatconviction.

(e) For the purposes of the restriction conditions specified inparagraphs (3) to (7), inclusive, of subdivision (a), thedepartment shall terminate the restriction imposed pursuant tothis section and shall suspend or revoke the person’s drivingprivilege upon receipt of notification from the program thatthe person has failed to comply with the programrequirements. The person’s driving privilege shall remainsuspended or revoked for the remaining period of theoriginating suspension or revocation and until allreinstatement requirements described in this section are met.


(f) For purposes of this section, completion of a program isthe following:

(1) Satisfactory completion of all program requirementsapproved pursuant to program licensure, as evidenced by acertificate of completion issued, under penalty of perjury, bythe licensed program.

(2) Certification, under penalty of perjury, by the director ofa program specified in Section 8001 of the Penal Code, thatthe person has completed a program specified in Section 8001of the Penal Code.

Comment. Subdivisions (a), (b), and (c) of Section 13352 areamended to reflect the redesignation of traffic hearing officers as juvenilehearing officers. See 1997 Cal. Stat. ch. 679.

Veh. Code § 13352.3 (amended). Juvenile offender

SEC. ___. Section 13352.3 of the Vehicle Code is amendedto read:

13352.3. (a) Notwithstanding any other provision of law,except subdivisions (b), (c), and (d) of Section 13352 andSections 13367 and 23521, the department immediately shallrevoke the privilege of any person to operate a motor vehicleupon receipt of a duly certified abstract of the record of anycourt showing that the person was convicted of a violation ofSection 23152 or 23153 while under 18 years of age, or uponreceipt of a report of a judge of the juvenile court, a juveniletraffic hearing officer, or a referee of a juvenile court showingthat the person has been found to have committed a violationof Section 23152 or 23153.

(b) The term of the revocation shall be until the personreaches 18 years of age, for one year, or for the periodprescribed for restriction, suspension, or revocation specifiedin subdivision (a) of Section 13352, whichever is longer. Theprivilege shall not be reinstated until the person gives proof offinancial responsibility as defined in Section 16430.


Comment. Subdivision (a) of Section 13352.3 is amended to reflectthe redesignation of traffic hearing officers as juvenile hearing officers.See 1997 Cal. Stat. ch. 679.

Veh. Code § 13355 (amended). Suspension for violation of Section22348(b)


13355. The department shall immediately suspend theprivilege of any person to operate a motor vehicle uponreceipt of a duly certified abstract of the record of any courtshowing that the person has been convicted of a violation ofsubdivision (b) of Section 22348, or upon a receipt of a reportof a judge of a juvenile court, a juvenile traffic hearingofficer, or a referee of a juvenile court showing that theperson has been found to have committed a violation ofsubdivision (b) of Section 22348 under the followingconditions and for the periods, as follows:

(a) Upon a conviction or finding of an offense undersubdivision (b) of Section 22348 which occurred within threeyears of a prior offense resulting in a conviction of an offenseunder subdivision (b) of Section 22348, the privilege shall besuspended for a period of six months, or the privilege shall berestricted for six months to necessary travel to and from theperson’s place of employment and, if driving a motor vehicleis necessary to perform the duties of the person’semployment, restricted to driving within the person’s scope ofemployment.

(b) Upon a conviction or finding of an offense undersubdivision (b) of Section 22348 which occurred within fiveyears of two or more prior offenses resulting in convictions ofoffenses under subdivision (b) of Section 22348, the privilegeshall be suspended for a period of one year, or the privilegeshall be restricted for one year to necessary travel to and fromthe person’s place of employment and, if driving a motor


vehicle is necessary to perform the duties of the person’semployment, restricted to driving within the person’s scope ofemployment.


Veh. Code § 23520 (amended). Alcohol or drug education program


23520. (a) Whenever, in any county specified in subdivision(b), a judge of a juvenile court, a juvenile traffic hearingofficer, or referee of a juvenile court finds that a person hascommitted a first violation of Section 23152 or 23153, theperson shall be required to participate in and successfullycomplete an alcohol or drug education program, or both ofthose programs, as designated by the court. The expense ofthe person’s attendance in the program shall be paid by theperson’s parents or guardian so long as the person is under theage of 18 years, and shall be paid by the person thereafter.However, in approving the program, each county shall requirethe program to provide for the payment of the fee for theprogram in installments by any person who cannot afford topay the full fee at the commencement of the program andshall require the program to provide for the waiver of the feefor any person who is indigent, as determined by criteria forindigency established by the board of supervisors. Wheneverit can be done without substantial additional cost, each countyshall require that the program be provided for juveniles at aseparate location from, or at a different time of day than,alcohol and drug education programs for adults.

(b) This section applies only in those counties that have oneor more alcohol or drug education programs certified by thecounty alcohol program administrator and approved by theboard of supervisors.


Comment. Subdivision (a) of Section 23520 is amended to reflect theredesignation of traffic hearing officers as juvenile hearing officers. See1997 Cal. Stat. ch. 679.

Veh. Code § 23521 (amended). Deemed conviction of a violation ofSection 23153


23521. Any finding of a juvenile court judge, juveniletraffic hearing officer, or referee of a juvenile court of acommission of an offense in any state, territory, possession ofthe United States, the District of Columbia, theCommonwealth of Puerto Rico, or the Dominion of Canadawhich, if committed in this state, would be a violation ofSection 23152, is a conviction of a violation of Section 23152for the purposes of Sections 13352, 13352.3, and 13352.5,and the finding of a juvenile court judge, juvenile traffichearing officer, or referee of a juvenile court of a commissionof an offense which, if committed in this state, would be aviolation of Section 23153 is a conviction of a violation ofSection 23153 for the purposes of Sections 13352 and13352.3.


Veh. Code § 40502 (amended). Place specified in notice to appear


40502. The place specified in the notice to appear shall beany of the following:

(a) Before a magistrate within the county in which theoffense charged is alleged to have been committed and whohas jurisdiction of the offense and is nearest or mostaccessible with reference to the place where the arrest ismade.


(b) Upon demand of the person arrested, before a judge orother magistrate having jurisdiction of the offense at thecounty seat of the county in which the offense is alleged tohave been committed. This subdivision applies only if theperson arrested resides, or the person’s principal place ofemployment is located, closer to the county seat than to thecourt or other magistrate nearest or most accessible to theplace where the arrest is made.

(c) Before a person authorized to receive a deposit of bail.The clerk and deputy clerks of the superior court are

persons authorized to receive bail in accordance with aschedule of bail approved by the judges of that court.

(d) Before the juvenile court, a juvenile court referee, or ajuvenile traffic hearing officer within the county in which theoffense charged is alleged to have been committed, if theperson arrested appears to be under the age of 18 years. Thejuvenile court shall by order designate the proper personbefore whom the appearance is to be made.

In a county that has implemented the provisions of Section603.5 of the Welfare and Institutions Code, if the offensealleged to have been committed by a minor is classified as aninfraction under this code, or is a violation of a localordinance involving the driving, parking, or operation of amotor vehicle, the citation shall be issued as provided insubdivision (a), (b), or (c); provided, however, that if thecitation combines an infraction and a misdemeanor, the placespecified shall be as provided in subdivision (d).

If the place specified in the notice to appear is within acounty where a department of the superior court is to hold anight session within a period of not more than 10 days afterthe arrest, the notice to appear shall contain, in addition to theabove, a statement notifying the person arrested that theperson may appear before such a night session of the court.


Comment. Subdivision (b) of Section 40502 is amended to reflectunification of the municipal and superior courts pursuant to formerSection 5(e) of Article VI of the California Constitution.

Subdivision (d) is amended to reflect the redesignation of traffichearing officers as juvenile hearing officers. See 1997 Cal. Stat. ch. 679.

WELFARE AND INSTITUTIONS CODE

Welf. & Inst. Code § 247 (repealed). Juvenile court referees

SEC. ___. Section 247 of the Welfare and Institutions Codeis repealed.

247. The judge of the juvenile court, or in counties havingmore than one judge of the juvenile court, the presiding judgeof the juvenile court or the senior judge if there is nopresiding judge, may appoint one or more referees to serve ona full-time or part-time basis. A referee shall serve at thepleasure of the appointing judge, and unless the appointingjudge makes his order terminating the appointment of areferee, such referee shall continue to serve as such until theappointment of his successor. Except as otherwise providedby law, the amount and rate of compensation to be paidreferees shall be fixed by the board of supervisors. Everyreferee first appointed on or after January 1, 1977, shall havebeen admitted to practice law in this state and, in addition,shall have been admitted to practice law in this state for aperiod of not less than five years or in any other state and thisstate for a combined period of not less than 10 years. Nothingin this section shall be construed to apply to the qualificationsof any referee first appointed prior to January 1, 1977.

Comment. Section 247 is repealed to reflect enactment of the TrialCourt Employment Protection and Governance Act. See Gov’t Code §§71622 (subordinate judicial officers), 71623 (salaries). Under that Act,the court may delegate to the presiding judge of the juvenile courtauthority to appoint or terminate a juvenile court referee.


Welf. & Inst. Code § 258 (amended). Sanctions for violation

SEC. ___. Section 258 of the Welfare and Institutions Codeis amended to read:

258. (a) Upon a hearing conducted in accordance withSection 257, and upon either an admission by the minor of thecommission of a violation charged, or a finding that the minordid in fact commit the violation, the judge, referee, or juvenilehearing officer may do any of the following:

(1) Reprimand the minor and take no further action.(2) Direct that the probation officer undertake a program of

supervision of the minor for a period not to exceed sixmonths, in addition to or in place of the following orders.

(3) Order that the minor pay a fine up to the amount that anadult would pay for the same violation, unless the violation isotherwise specified within this section, in which case the fineshall not exceed two hundred fifty dollars ($250). This finemay be levied in addition to or in place of the followingorders and the court may waive any or all of this fine, if theminor is unable to pay. In determining the minor’s ability topay, the court shall not consider the ability of the minor’sfamily to pay.

(4) Subject to the minor’s right to a restitution hearing,order that the minor pay restitution to the victim, in lieu of allor a portion of the fine specified in paragraph (3). The totaldollar amount of the fine, restitution, and any program feesordered pursuant to paragraph (9) shall not exceed themaximum amount which may be ordered pursuant toparagraph (3). Nothing in this paragraph shall be construed tolimit the right to recover damages, less any amount actuallypaid in restitution, in a civil action.

(5) Order that the driving privileges of the minor besuspended or restricted as provided in the Vehicle Code or,notwithstanding Section 13203 of the Vehicle Code or anyother provision of law, when the Vehicle Code does not


provide for the suspension or restriction of driving privileges,that, in addition to any other order, the driving privileges ofthe minor be suspended or restricted for a period of not toexceed 30 days.

(6) In the case of a traffic related offense, order the minor toattend a licensed traffic school, or other court approvedprogram of traffic school instruction pursuant to Chapter 1.5(commencing with Section 11200) of Division 5 of theVehicle Code, to be completed by the juvenile within 60 daysof the court order.

(7) Order that the minor produce satisfactory evidence thatthe vehicle or its equipment has been made to conform withthe requirements of the Vehicle Code pursuant to Section40150 of the Vehicle Code if the violation involved anequipment violation.

(8) Order that the minor perform community service workin a public entity or any private nonprofit entity, for not morethan 50 hours over a period of 60 days, during times otherthan his or her hours of school attendance or employment.Work performed pursuant to this subparagraph shall notexceed 30 hours during any 30-day period. The timeframesestablished by this subparagraph shall not be modified exceptin unusual cases where the interests of justice would best beserved. When the order to work is made by a referee or atraffic juvenile hearing officer, it shall be approved by a judgeof the juvenile court.

For the purposes of this subparagraph, a judge, referee, orjuvenile hearing officer shall not, without the consent of theminor, order the minor to perform work with a privatenonprofit entity that is affiliated with any religion.

(9) In the case of a misdemeanor, order that the minorparticipate in and complete a counseling or educationalprogram, or, if the offense involved a violation of a controlledsubstance law, a drug treatment program, if those programs


are available. Any fees for participation shall be subject to theright to a hearing as the minor’s ability to pay and shall not,together with any fine or restitution order, exceed themaximum amount that may be ordered pursuant to paragraph(3).

(10) Require that the minor attend a school program withoutunexcused absence.

(11) If the offense is a misdemeanor committed between 10p.m. and 6 a.m., require that the minor be at his or her legalresidence at hours to be specified by the juvenile hearingofficer between the hours of 10 p.m. and 6 a.m., except for amedical or other emergency, unless the minor is accompaniedby his or her parent, guardian, or other person in charge of theminor. The maximum length of an order made pursuant tothis paragraph shall be six months from the effective date ofthe order.

(12) Make any or all of the following orders with respect toa violation of the Fish and Game Code which is not chargedas a felony:

(A) That the fishing or hunting license involved besuspended or restricted.

(B) That the minor work in a park or conservation area for atotal of not to exceed 20 hours over a period not to exceed 30days, during times other than his or her hours of schoolattendance or employment.

(C) That the minor forfeit, pursuant to Section 12157 of theFish and Game Code, any device or apparatus designed to be,and capable of being, used to take birds, mammals, fish,reptiles, or amphibia and which was used in committing theviolation charged. The judge, referee, or juvenile hearingofficer shall, if the minor committed an offense which ispunishable under Section 12008 of the Fish and Game Code,order the device or apparatus forfeited pursuant to Section12157 of the Fish and Game Code.


(13) If the violation charged is of an ordinance of a city,county, or local agency relating to loitering, curfew, or fareevasion on a public transportation system, as defined bySection 99211 of the Public Utilities Code, or is a violation ofSection 640 or 640a of the Penal Code, make the order thatthe minor shall perform community service for a total timenot to exceed 20 hours over a period not to exceed 30 days,during times other than his or her hours of school attendanceor employment.

(b) The judge, referee, or juvenile hearing officer shallretain jurisdiction of the case until all orders made under thissection have been fully complied with.

Comment. Subdivision (a)(8) of Section 258 is amended to reflect theredesignation of traffic hearing officers as juvenile hearing officers. See1997 Cal. Stat. ch. 679.

Welf. & Inst. Code § 654.1 (amended). Program of supervision

SEC. ___. Section 654.1 of the Welfare and InstitutionsCode is amended to read:

654.1. (a) Notwithstanding Section 654 or any otherprovision of law, in any case in which a minor has beencharged with a violation of Section 23140 or 23152 of theVehicle Code, the probation officer may, in lieu of requestingthat a petition be filed by the prosecuting attorney to declarethe minor a ward of the court under Section 602, proceed inaccordance with Section 654 and delineate a program ofsupervision for the minor. However, the probation officershall cause the citation for a violation of Section 23140 or23152 of the Vehicle Code to be heard and disposed of by thejudge, referee, or traffic juvenile hearing officer pursuant toSections 257 and 258 as a condition of any program ofsupervision.

(b) Nothing in this section shall be construed to prevent theprobation officer from requesting the prosecuting attorney tofile a petition to declare the minor a ward of the court under


Section 602 for a violation of Section 23140 or 23152 of theVehicle Code. However, when in the judgment of theprobation officer, the interest of the minor and the communitycan be protected by adjudication of a violation of Section23140 or 23152 of the Vehicle Code in accordance withsubdivision (a), the probation officer shall proceed undersubdivision (a).

Comment. Subdivision (a) of Section 654.1 is amended to reflect theredesignation of traffic hearing officers as juvenile hearing officers. See1997 Cal. Stat. ch. 679.

Documents

CALIFORNIA LAW REVISION COMMISSIONThis publication (#215) will appear in Volume 33 of the Commis-sion’s Reports, Recommendations, and Studies . Commission publications and other